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Supreme Court Reinstates Iftikhar Chaudhry as Chief Justice of Pakistan

Posted on July 20, 2007
Filed Under >Adil Najam, Law & Justice, People, Politics
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Adil Najam

The news is in. The Supreme Court of Pakistan just reinstated Iftikhar Chaudhry as the Chief Justice of Pakistan by throwing out the Presidential reference against him. The Supreme Court has today showed its mettle, just as the lawyers of Pakistan have been showing their mettle for the last many months. One feels proud of both today. (READ TEXT OF SUPREME COURT’S SHORT ORDER HERE).

Whether you agree with the verdict or not, the decision from the Supreme Court today is clearly historic. Not because of what it means for Iftikhar Chadhry (reinstatement as Chief Justice) or for Pervez Musharraf (his reference against the CJ has been thrown out). It is historic because of what it means – and what one hopes it will mean – for the Justice system in Pakistan. Although many have made it about one of these things.

This case was never just about Chief Justice Iftkhar Chaudhry nor just about gen. Pervez Musharraf. This was always about something bigger. It was about the rule of law. The dignity of law. About sanctity of the judicial system. About respect for institutions. About Pakistanis being essentially democratic at heart. About constitutionalism. And about the importance of process. Once hopes that this decision will be seen not only as a reinstatement of the Chief Justice but as a symbol of the sanctity of all of the above.



The court’s decision (we will post the full text here as soon as we can) seems well-worded on this point (from television reports). It highlights that this is not a decision for or against a person but for the judicial process. One hopes that all concerned will react in this way. The government’s early reaction is good, including from the Prime Minister. It is one of acceptance. That is how it should be. It is early to say, but one hopes that the government’s spin doctors and especially Gen. Musharraf will truly accept the decision in word and in deed. This will accept a humility that people in power have not usually shown in Pakistan. It would be good to set a tradition of acceptance of justice. It will also need a magnanimity of heart from Chief Justice Iftikhar Chaudhry.
ATP Poll on Chief Justice's removalATP Poll on Chief Justice's removalThis will, of course, have profound impacts on Pakistan politics, including on the issue of Gen. Musharraf’s ‘uniform. That is also how it should be. Pakistan politics today is not what Pakistan politics was when the President took the decision to send the reference. One hopes that everyone, including Gen. Musharraf understands that. This will impact real politics in real ways. That will unroll – and should unroll – through the political process and through public opinion. That is how it should be. But for now, the real story here is that a dispute was resolved through the proper process. For now, I hope we will focus on this larger story. That people will come to respect the courts. That the courts will themselves assert their dignity and due role. That governments will not use the courts as their hand maidens. Most importantly, I hope this will give the courts the precedence and the confidence to assert themselves as they should.

There will be many who will be inclined to spin this every which way. Some advisors to both will root for digging in – one way or the other. Political types will try to spin this for their particular political preferences. I hope that the key actors here will reject all these inevitable noises. For once, I hope, people — all people — will rise about personal interests and for national interests. The supreme Court full bench under Justice Ramday and, in the shadows, Justice Bhagwandas have made us prous and shown us the way. Now, if only the remaining 160 million of us can follow their example in the spirit in which the decision is expressed by the court.


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Details, according to The News:

A 13-member full court of the Supreme Court on Friday gave historic verdict to reinstate Chief Justice Iftikhar Muhammad Chaudhry and quashed misconduct charges filed against him by President Pervez Musharraf. The announcement sparked massive celebrations by lawyers who had spent the day waiting outside the court for the verdict. Chaudhry was suspended in March, following allegations that he abused his position, notably to obtain a top police job for his son and other privileges for himself. “The reference of the president dated March 9, 2007 is set aside,” presiding judge Khalil-ur-Rehman Ramday told the court, announcing the panel of judges had reached a 10-3 decision in Chaudhry’s favour after a 43-day hearing.

“As a further consequence, the petitioner, the Chief Justice of Pakistan, shall be deemed to be holding the said office and shall always be deemed to have been so holding the same,” he said. The Supreme Court started hearing of an appeal of Chief Justice of Pakistan Iftikhar Muhammad Chaudhry against his suspension by President Gen. Pervez Musharraf on April 18. Iftikhar Mohammed Chaudhry had challenged Musharraf’s decision to suspend him and he was under trial for alleged misconduct. The lead counsel for the chief justice Chaudhry Aitzaz Ahsan had filed a petition against presidential reference under article 184-III of constitution.

Aitzaz Ahsan had completed his arguments during the hearing today after which head of a 13-member full court bench of Supreme Court Justice Khalilur Rahman Ramday announced the brief verdict. On this occasion, special security arrangements were made outside the Supreme Court by posting heavy contingents of police. Meanwhile, Prime Minister Shaukat Aziz said the government accepted the Supreme Court’s decision to reinstate the country’s top judge but added it was “not the time to claim victory or defeat.”

“I have just learnt of the Supreme Court decision. I have always maintained that the decision by the honourable court must be accepted by all sections of the people including the government itself,” Aziz said in a statement. “This is not the time to claim victory or defeat. The constitution and the law have prevailed and must prevail at all times,” he added.

Thanks to reader Saad for sending us the full text of the Supreme Court’s short order:

ORDER

For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under:-

(I) MAINTAINABILITY OF COP NO.21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION
This petition is unanimously declared to be maintainable.

(II) VALIDITY OF THE DIRECTION (THE REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION.
By a majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), the said direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring, is set aside.

(III) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER
BEING PRESIDENT’S ORDER NO. 27 OF 1970 AND THE CONSEQUENT VALIDITY OF THE ORDER DATED 15.3.2007 PASSED BY THE PRESIDENT DIRECTING THAT THE CJP SHALL BE ON LEAVE
The said President’s Order No.27 of 1970 is, unanimously declared as ultra vires of the Constitution and consequently the said order of the President dated 15.3.2007 is also, unanimously declared to have been passed without lawful authority.

(IV) VALIDITY OF THE ORDER OF THE PRESIDENT DATED 9.3.2007 AND OF THE ORDER OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT AND/OR CHIEF JUSTICE OF PAKISTAN
Both these orders are, unanimously, set aside as being illegal. However, since according to the minority view on the question of the validity of the direction (the Reference) in question, the said Reference had been competently filed by the President, therefore, this Court could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.

(V) VALIDITY OF THE APPOINTMENT OF THE HON’BLE ACTING CHIEF JUSTICES OF PAKISTAN IN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CJP

The appointments in question of the Hon’ble Acting Chief Justices of Pakistan vide notification dated 9.3.2007 and the notification dated 22.3.2007 are, unanimously, declared to have been made without lawful authority. However, this in-validity shall not affect the ordinary working of the Supreme Court or the discharge of any other Constitutional and/or legal obligations by the Hon’ble Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de-facto doctrine.

(VI) ACCOUNTABILITY OF THE HON’BLE CHIEF JUSTICE OF PAKISTAN
It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication.
All other legal and Constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.

ORDER OF THE COURT

By majority of 10 to 3 (Faqir Muhammad Khokhar, J., M. Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), this Constitution Original Petition No.21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007 is set aside. As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.

The other connected petitions shall be listed before the appropriate Benches, in due course, for their disposal in accordance with law.

ATP’s coverage of the Chief Justice issue:
- Constitutional Deja Vu
- Collateral Benefits
- Politics of References
- Where is the Prime Minister?
- Acting Chief Justice Bhagwandas
- ATP Goes to Supreme Court
- Celebrating the Democratic Spirit
- CJP Mushaira (Faraz)
- CJP Mushaira (Faiz)
- Karachi Burns
- Hope on a Dark Day
- Media Under Siege
- ATP Poll on CJP
- Shameful. Dangerous.
- CJP Removed by President

113 Comments on “Supreme Court Reinstates Iftikhar Chaudhry as Chief Justice of Pakistan”

  1. Kruman says:
    July 23rd, 2007 7:45 pm

    S_214,
    The documents in support of the reference you talked about were thrown out by Justice Ramday. Infact the advocate on record had his license suspended. Justice Ramday remarked that even the “ghatia-tareen” people don’t submit such record to the supreme court.

    I do partially agree with the first part of your argument though. Technically, “qanoon andha hota hay.” But that is so in a democratic society, not under a tyranny.

    In this case though the judges had the courage to resist govt pressure and to decide the case on merit. This was only made possible after lawyers rallied the masses on a single slogan of “supremacy of law, and not the supremacy of the army.” I guess you need such measures when a man with a gun in his hand assumes the position of the president. At that point it is pointless to talk about consitution, freedom, democracy. Then the law of the land becomes, “might is right.”

    Feel free to critique. However, I rest my case here, I am not arguing any more.

  2. Kruman says:
    July 23rd, 2007 10:22 pm

    I don’t know Bilal, I am sure he is a fine honest man. He should be kept insulated from the critique of his father.

    If anything, to me this is an article from a lovings son’s heart who believes his father to be a good man. While I don’t agree with the contents (especially after the last 8 years), I can appreciate the emotions and feelings in the article.

    Pervez Musharraf needs to read his son’t letter and evaluate his last 8 years in office.

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