Adil Najam
In a rather shocking move, the President, Gen. Perzez Musharraf just dismissed the current Chief Justice of the Supreme Court of Pakistan, Iftikhar Mohammed Chaudhry for alleged “misuse of authority.”
According to a breaking news segment at The News:
The president has submitted a case against Chaudhry to the Supreme Judicial Council. Musharraf had received “numerous complaints and serious allegations for misconduct, misuse of authority and actions prejudicial to the dignity of office of the chief justice of Pakistan,” and Chaudhry had been unable to give a satisfactory explanation, sources said. The report did not specify what he was accused of. The council is a panel of top Pakistani judges that adjudicates cases brought against serving judges and will decide whether the charges against Chaudhry merit his formal dismissal and whether he should be prosecuted.
Basing their story on the Associated Press of Pakistan, the BBC reports further:
Mr Chaudhry was summoned to explain himself to Gen Musharraf and Prime Minister Shaukat Aziz. His case was then referred to the Supreme Judicial Council which will decide if Mr Chaudhry should be prosecuted.
The move has shocked many, but signs of its coming can now be identified in hindsight. Mr. Chaudhry had served as the Chief Justice since 2005 and, on occasion, had taken steps that had irked the power structure in Pakistan.
According to a Khaleej Times report, for example:
Last June, the Supreme Court rejected a government move to sell 75 percent of state-owned Pakistan Steel Mills to a Saudi-Russian-Pakistani consortium for 21.7 billion rupees ($362 million). Mill workers claimed it was greatly undervalued. Also, Chaudhry has heard a landmark case brought by relatives of dozens of people believed taken into secret custody by Pakistani intelligence agencies. The chief justice has pressed the government to provide information on the detainees whereabouts. Talat Masood, a political analyst, said the removal of Chaudhry demonstrated the power of the military and suggested that Musharraf’s government wanted to have a “pliable judiciary” ahead of parliamentary elections expected later this year. Musharraf, who took power in a bloodless coup in 1999, is widely expected to seek another five-year term as president from parliament this fall.
Recently, an open letter from Advocate Naeem Bokhari addressed to the Chief Justice and making a number of allegations against him – some personal – has been circulating on the internet extensively. Over the last week, I received probably two dozen emails with that letter in it (many from our readers, and one from my mother!). It seems to have created a stir. Many readers have been writing that we do a post on that letter. I had not done so, just because the letter was a little puzzling to me and its motivations were not clear. I wondered also if there were hints of personal rivalries or issues. On the other hand it was a well-written and seemingly sincere letter from a person of known integrity. In retrospect, the way the letter ended was prophetic:
My Lord, this communication may anger you and you are in any case prone to get angry in a flash, but do reflect upon it. Perhaps you are not cognizant of what your brother judges feel and say about you. My Lord, before a rebellion arises among your brother judges (as in the case of Mr. Justice Sajjad Ali Shah), before the Bar stands up collectively and before the entire matter is placed before the Supreme Judicial Council, there may be time to change and make amends. I hope you have the wisdom and courage to make these amends and restore serenity, calm, compassion, patience and justice tempered with mercy to my Supreme Court. My Lord, we all live in the womb of time and are judged, both by the present and by history. The judgement about you, being rendered in the present, is adverse in the extreme.
In all honesty, one has to wonder, however, whether it was that letter and other recent media focus on the Chief Justice that led to the removal of the Chief Justice, or whether these were merely instruments designed to prepare the way for this removal?
In either case, a removal of the Chief Justice in this way and for such reasons and at this time is a sad, sad development that will be one more blow to the hopes of the development of an independent judiciary in Pakistan.
Note: At various points we have reproduced, in our right-most column, cartoons from Daily Times (and here) and The News.
Here are the 35 charges against CJP. BBC has published a copy of reference.
In my view, these are stupid kind of charges and looks like a joke to me. I can’t believe Mushy is getting such poor legal advice.
it is another game of “iktdar ko tol do” of this Pesedent mushuraf regime,i don’t think that what will be effect of this act,but one thing is clear that “insaf milna assan nahee” that may be for common man or may be for cheif justice.
Interesting editorial in the Daily Times today. Some excerpts:
Open letter to Lord Justice Javed Iqbal
Thursday, March 15, 2007
Your FCO Ref: FCO Pro Bono Panel/suo moto/larger bench /2007
Private and strictly confidential and for the addressee only
Lord Justice Javed Iqbal
Acting Lord Chief Justice of the Supreme Court of Pakistan
Constitution Avenue, Islamabad
Supreme Court of Pakistan
Islamabad
Pakistan
Section Lines # 9220581-9220600
Fax # 9213452
Email: scp2000@isb.paknet.com.pk
Dear Honourable Lord Justice Mr. Iqbal, the Acting Chief Justice of Pakistan
Re: Chief Justice of Islamic Republic of Pakistan
We at the Association of Pakistani Lawyers (APL) along with fellow English Judges & Solicitors of the Supreme Court of England and Wales as well as members of respective regional Bars and ex pat members of APL refer to above and we jointly express our deep sorrow and dismay at the ‘ill treatment’ of current Chief justice Iftikhar Mohammed Chaudhary at the hands of local police on the 13th March 2007 as well as his continuous detention of which your Lordship took a suo moto notice yesterday and we appreciate and welcome this gesture of good will towards your fellow brother Judge.
We all jointly appreciate in the highest terms of the Lord Chief Justice Iftikhar Mohammed Chaudhary’s unprecedented determination to face allegations against him at SJC and not to resign from his constitutional position. English media declared it a ‘Judicial Error’ as was the editorial in The Times newspaper (London) on 14 March 2007 at the following link:
http://www.timesonline.co.uk/tol/comment/leading_a rticle/article1511796.ece
We all are agreed on one point and are in favour of judicial activism when government of the day fails to deliver truly the relief people deserves, however, unconstitutional means follow when constitution fails to address the real issues and we foresee and fear a trail of further unconstitutional action(s) which may be in the offing and can trigger any time due to foreign interest in our country and request the Acting Judge to be ready to face the challenge to preserve rule of law and superiority of the Constitution of the Islamic Republic of Pakistan 1973.
We jointly request your Lordship’s intervention and consideration in order to initiate a full scrutiny of the above matter by forming a full bench consisting of all Apex judges in SC within a limited time frame to ensure proper scrutiny of Article, 209 and ensuring justice with the sitting Chief Justice of Pakistan. We are assured by your court as always and by previous incidents that ‘Justice will be done in this matter as was in the case of Mukhtara Maee, Sonia Naz, victims of Basant and missing people, trial of which are pending.
My Lord, We all jointly request your worship to consider the following:
• Kindly Consider to meet the Chief Justice ‘one to one’ to assure him that he will get a fair hearing against the reference filed with ‘Supreme Judicial Council’ by the President of Pakistan on the 9th of March 2007.
• Kindly Consider to call a full court of all Apex judges to consider this important constitutional elaboration in the light of the reference and Executive’s insistence to make CJ ‘non functional’ contrary to the letter and Spirit of the Constitution of Pakistan 1973 (Art 209) as there is no precedent of CJ ever being made non functional in any country in the World unless charged with a criminal offence or treason.
• Kindly consider an issue to resolve by full court reference to restore Chief’s administrative position as CJ because Art. 209 is silent on the ‘non functional’ status of CJ and there is no provision of non functional Chief justice as would be the case if President is impeached and or Prime Minster awaits the outcome of a no confidence motion. To our consolidated view CJ may not take legal cases due to future application of ‘miscarriage of Justice’ allegation against the judgments he delivers whist he awaits the outcome of his reference, however we feel that he still remain functional and may not leave Supreme Court un administered.
• Kindly Consider an issue to resolve by full court reference to restore all privileges of the CJ and bring him out of said ‘house arrest’ and allow him to meet his lawyers and whosoever the Honourable CJ desires, CJ also must be provided with the local necessities such as newspapers, telephone facility, and medication as he desires and CJ must be allowed to use his chamber and staff at SC.
• Furthermore, kindly consider an issue to resolve by full court reference to restore order to restore normalcy around CJ’s private life as we learnt with shame that his daughter is not allowed to attend school, as well as his family is restrained to entertain their worried relatives and they are unable to communicate independently to convey their well being and are unable to meet them.
• Kindly consider an issue to resolve by full court reference to order full restoration of Chief Justice’s protocol and privileges less his judicial duties.
• Kindly consider as an issue to resolve by full court reference to consider hearing the submissions of Attorney General as to prima facie allegations to prove that there is a reference to answer as there is several references and complaints already pending and not always all complaints are just and equitable, and before making him non functional if that is the desire of Apex Court a prima facie case must be made with regard to reference.
• Kindly consider an issue to resolve by full court reference an option of Govt. withdrawing the said reference if the Government is willing to request the President in the supreme national interest as the media trial of CJ and remarks of two CM’s and media minister as well as wide circulation of the letter of Advocate cum TV star Naeem Bukhari has already put CJ in a very compromised position and he may not get a fair hearing if the media trial continues.
• Kindly consider an issue to resolve by full court reference to order to ensure that the chief justice at least to have a fair hearing against this reference. Chief Justice deserves a due respect and proper treatment to have his legal team for consultation and advice and unless Council decides otherwise all the privileges he deserves in the remit of constitution.
• Kindly consider an issue to resolve by full court reference to invite and appoint the senior most judges in the SC as the Acting Chief Justice. In current case Mr. Justice Rana Bhagwan Das has done this job twice in the past when current CJ was on foreign tour to China and for pilgrimage and we do not see any reason why he can not redo it again. I hope he will be happy to do it again though reluctantly if the matter proceeds. There are rumors circulating about his presence in the country, therefore, in this ‘national constitutional crisis’ the prolonged leave and absence of Justice Bhagwan Das is adding more suspense to this mystery, and your Lordship is kindly invited to consider giving Mr. Justice Das a courtesy call to invite him to return to his homeland and if already in country to attend SC to perform his constitutional duty.
If your Lordship ensures that, we assure you that the working of Supreme Court will resume as normal. We will just mention here a lesson of history though we tend not to learn the lesson(s) of history and forget it quickly. Around the year of 1616 The Queen Elizabeth the First of England tried to subdue her Chief Justice Mr. Justice Edward Coke who gave decisions against the realm and people resented and took to street and made him a living legend, its still time to hold the last assault on CJ which may prove disastrous for the judiciary as well as the interest of Pakistan.
We expect your speedy action on this issue and request to consider this letter as a request to call a full court reference to decide the following:
• Appointment of Senior Most judge as Acting CJ under Art 180.
• True elaboration of Art 209 and legal position of CJ whether he can be made ‘non functional’ or not.
• Construction of SJC to maximize fairness and how this can be guaranteed addressing prima facie reservations of CJ.
We are sure when the Apex judges will sit and ponder this most controversial reference in the Judicial history of Pakistan, they will come to an understanding how to proceed in the best interest of the country preserving rule of law and ensuring individual’s interest to guarantee fairness and due process of law. History is in the making if today Lord Chief Justice Iftikhar Mohammed Chaudhary is removed unconstitutionally as he is restrained at his house, what guarantee lies ahead that any Chief Justice in future including your Lordship who tend to hear any controversial case against the Govt. may not be removed and detained by announcing and filing merely a plain reference before SJC challenging his conduct.
It’s a dangerous tendency and only Supreme Court itself from its own internal mechanism can address and challenge it and may save this institution by due consultation, wisdom, patience and honour and we wish you all the best in your endeavours to bring us all out of this constitutional quagmire. We agree that personalities are not higher than national interest and sometimes, one ought to sacrifice personal pride and interest upon supreme national interest, may be same must apply to our rulers too. Once again I am grateful for your access to us. Please do not hesitate to contact the Association at 01706-346011 if we can be of any assistance and we look forward to hearing from your Lordship a statement which has become a public demand a surety of ‘justice’.
Yours faithfully,
Amjad Malik, MA, LLM
Solicitor-Advocate of the Supreme Court of England and Wales
Life Member SCBA (Pakistan)
Chair Association of Pakistani Lawyers (UK)
http://www.prideofpakistan.com:8080/maincontroller ?requestId=26&id=126
It is distressing to see such a crises created by General Musharaf and his associates.The frustration and anger of the people of Pakistan is now bieng displayed.They have had enough of his misuse of power.I commend and salute C J for standing up to Musharaf and not fading into the shodows,as so many have done in the past.I was appauld to see the media coverage of this events today,it high lights the bully tactics of the dictatorship and proves that there is no freedom for the expression and the pakistani people have no rights to protest.Police and miltary were the one craeting the voilance,they were shear thugs.It is now time for the people of pakistan to stand up to this resigm.(long live pakistan)