Ali Khan [Washburn University School of Law]: "In defending the suspension of Chief Justice Iftikhar Chaudhry, Pakistan government lawyers must argue that President Pervez Musharraf has properly exercised his executive power under Article 209(5). Assuming the President is authorized to refer the matter to the Supreme Judicial Council (SJC), the question remains whether the Executive order to send the Chief Justice on forced leave (suspension) was an appropriate interim measure. Article 209(5) is silent on interim measures that the President or the SJC may take while the latter investigates and hears the case.

On this issue, the practices of the State of California Commission on Judicial Performance provide some guidance. (California was the first state in the United States to set up a permanent body to oversee judicial misconduct. Now, all fifty states have comparable bodies.) The California Commission is authorized to receive complaints against California state judges from any one, including lawyers and litigants. Each complaint, alleging an on-bench or off-bench abuse of authority, is "carefully and thoroughly reviewed and investigated."

Before or during the investigation, the California Commission uses no interim measures to suspend a judge from office, seal his office, fire his staff, or send the judge on forced leave.

Only after the completion of the investigation may the Commission exercise none or one of the many available disciplinary options. It may close the case if allegations are found to be untrue or unprovable. If the alleged misconduct is found to be true, removal is not the only option available to the Commission. The Commission may write a confidential advisory letter to the judge, expressing disapproval of the judge's conduct. If the misconduct is serious, the Commission may still keep its findings confidential but issue a private admonishment, warning the judge that the conduct must not be repeated. This confidentiality is essential for maintaining the dignity of the judiciary in cases of minor breaches of proper judicial conduct. In more serious breaches, however, the Commission may go public and disclose its findings to the press and the general public. The Commission may use either a public admonishment or a public censure to discipline the judge, depending on the nature and impact of the improper conduct. Finally, in cases of persistent and pervasive misconduct, the Commission – following a hearing – may remove the judge from office.

The Pakistan President's order to go public and suspend the Chief Justice – before any investigation by the SJC – falls under the definition of an interim measure. The Constitution grants the President no such power. The Constitution is also silent on the punitive options available to the SJC. Article 209 seems to endorse an all or nothing approach. After inquiring into the matter, the only punitive measure that the SJC may recommend to the President is the judge's removal from office. It is hard to believe that the Constitution has preempted all lesser punitive options. And it is hard to believe that the SJC must recommend removal even if the judicial misconduct is minor.

Suppose – following a SJC hearing – the Chief Justice is found to have breached judicial conduct. Is it possible that the breach is not serious enough to require removal? A lesser punitive option, such as confidential admonition or even public censure, might be a more befitting disciplinary measure. Before a hearing, allegations of misconduct are no more than allegations. And before a hearing, it is mere speculation to say that the alleged misconduct is so serious that the Chief Justice must be sent on forced leave and his office sealed. In suspending the Chief Justice, the President has employed a constitutionally unavailable extreme interim measure. In the words of Pakistan's gifted poet Faiz Ahmed Faiz: Muqam Faiz rah main koi jucha hi nahin/ jo koyee yar se naiklee tu suay dar challe. (O Faiz, at no place on the way did they even consider to stop or drop us /we were plucked from the beloved's bosom and sent straight to the gallows.)"