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 Chaudhry (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 Iftikhar 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 removal](http://pakistaniat.com/images/Poll-CJP-s.jpg" "ATP Poll on Chief Justice's removal")
This 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 proud 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.
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 Honorable 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 Honorable 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 HONORABLE 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
Judgment in CJ’s case should be welcomed with caution:
By Dr. Muhammad Naeem Chishti, Solicitor (London)
A Full Court Bench of the Supreme Court of Pakistan comprising thirteen Judges led by Justice Khalilur Rehman Ramday unanimously ruled on Friday 20 July 2007 that suspension of Chief Justice Iftikhar Muhammad Chaudhry was illegal. Reinstating Justice Chaudhry to the apex judicial office in the country, the Court also set aside the Presidential Reference of 09 March 2007 with a majority verdict of ten to three. While the whole nation is jubilant at the verdict, leaders of political parties, Bar Associations, and non-political organizations have termed the judgment as a victory of the right over the wrong, implying that the verdict was basically a humiliating defeat for President General Pervez Musharraf and his allies. Some leaders, like Mian Muhammad Nawaz Sahrif, have even gone to the extent of claiming that the General had no moral right to lead the country and he should resign from his office forthwith.
Clearly, peoples’ expectations from the Judiciary have been risen manifold after the judgment. However, keeping in view the track record of the Pakistani Judiciary, the judgment in CJ Chaudhry’s case should be welcomed with caution. It is an undisputable fact that the Judges have never felt any hesitation to legitimise military takeovers in Pakistan. Their judgments in the cases of Maulvi Tamizuddin Khan, Dosso, Begum Nusrat Bhutto, and Zafar Ali Shah have shown consistent support for dictators. They not only provided constitutional cover to the unconstitutional acts of General Ayub Khan, General Ziaulhaq, and General Pervez Musharraf but also eulogised them as heroes and ‘saviours of the nation’. The only time the Judges gave a verdict against the Generals was in the case of Asma Jilani when they declared General Yahya Khan as a usurper and his rule as illegitimate rule. However, this judgment was delivered after General Yahya Khan’s fall from power. One of the main reasons for the anti-Yahya judgment in this case was the humiliation and harassment of almost all the Judges of the superior courts by General Yahya during his regime.
If we look at Pakistan’s constitutional history, we can see that right from Chief Justice Muhammad Munir to Chief Justice Iftikhar Muhammad Chaudhry, most of the Judges of the superior courts of Pakistan have always decided in favour of the Generals in crucial constitutional cases in depriving the country of constitutional democratic governance. Their relationship with the Generals goes smooth as long as the Generals treat them as equals in power. However, the psyche of the Generals is such that once they are settled in their ‘usurped’ offices, they try to demote the Judges from the level of equals or partners to the level of courtiers or subordinates. This is when the relationship between the Judges and the Generals becomes uncomfortable. This was the main motivating factor in the case of Asma Jilani.
Chief Justice Iftikhar Muhammad Chaudhry was appointed as a Judge of High Court by President Ghulam Ishaq Khan in 1990. General Musharraf appointed him as Chief Justice of Baluchistan High Court in April 1999 and elevated him to the Supreme Court February 2000. He was appointed as Chief Justice of the Supreme Court by General Pervez Musharraf on 30 June 2005. The two had been meeting regularly, more on an unofficial level than on the official one, before the present constitutional crisis that erupted on 9 March 2007. The main reason behind General Musharraf’s act was his distrust of the Chief Justice. While Justice Iftikhar Muhammad Chaudhry continued to meet the President to show him that he was a reliable judge, his verdict in some of the cases against government spoke otherwise. Had General Pervez Musharraf understood the psyche of Judges, there would have been little cause for worry: as every General wants to be seen as rough and tough, every Judge wants to be seen as impartial and independent.
General Pervez Musharraf’s distrust of Chief Justice Iftikhar Muhammad Chaudhry was unfounded. What the Chief Justice and some of his colleagues wanted to show in their judgments against the government was that the Judiciary was independent in Pakistan. However, General Pervez Musharraf failed to realize this fact. He panicked and acted hastily and irrationally by first summoning the Chief Justice to the General Headquarters (GHQ) of the Pakistan Army and then by suspending him from his office and sending a Reference against him to the Supreme Judicial Council. The Judges were pushed to the wall and they were left with no other option but to proclaim their own independence and that of their institution, as they did unanimously on 20 July 2007, by declaring their Chief Justice’s suspension as illegal. It is clear from this judgment that though the Judiciary is not as organized as the military, but the Judges will always stand together whenever the independence of their institution is brought into question, especially before the public.
Therefore, the judgment of the Supreme Court of Pakistan in Chief Justice Iftikhar Muhammad Chaudhry’s case delivered on Friday 20 July 2007 needs to be welcomed with caution. The lawyers and their leaders, as also human rights activists and workers of political parties and their leaders who supported Chief Justice Iftikhar Muhammad Chaudhry, deserve congratulations for successful outcome of their struggle. The Judges, led by Justice Khalilur Rehman Ramday, also merit appreciation for showing unanimity in asserting the independence of their institution.
The judgment in the instant case made it clear that Chief Justice Iftikhar Muhammad Chaudhry’s suspension was illegal and the Presidential Reference against him was malafide. In other words, President General Pervez Musharraf and his aides and advisors acted in flagrant violation of the Constitution by exposing themselves to Article 6 of the Constitution. However, the Judges, for the reasons best known to them, said nothing about invoking Article 6 against the people who attempted to breach the Constitution. Therefore, it would be too early, if not very unwise, to interpret the Friday’s judgment as beginning of a new era in the constitutional politics of Pakistan. It will be only when Judges do the crucial job of declaring a military ruler as a usurper while he is still in office that the people will be led to believe that the Judges had perhaps disassociated themselves from the Generals.
The writer holds a PhD degree in Constitutional Law from Brunel University, London. The topic of his research thesis was: “Unholy Alliance: The Politicization of the Judiciary and the Overthrow of Constitutional Governance in Pakistan
It indeed is the historic judgement in the chequered history of this beleagured nation: beleagured by the military and the foreign powers. It is the victory of the people over the forces of establishment, chiefly the Army. The Army top brass must now be cut to size: to its primary function of defending the borders and not the economic and political interests of the military top brass.
I never felt so proud before but certainly the decision on the CJ case made me a proud Pakistani. This is a start of new era. The army has been slapped by the will of the people. It is in the interest of the nation that Army should return to barraks. Anyway i would like to Salute our hero ‘Ch Aitzaz Ahsin’…
I have just started blogging again regularly after one of my hiatuses…maybe I shouldn’t say much here, since everyone’s being so sunny. Just one thing: that an informed, engaged and vigilant citizenry is necessary for any kind of well-run society–democratic, liberal, enlightened, or whatever. We need to cherish and support those who are periennially at the barricades against oppression and extralegality. “Sulthani-e-Jamhoor ka athaa hai zamaana/Joe naqsh-e-kohan thum koe nazar aayay; mitaa dhoe!” said our national poet. But that’s a process, not an event.
If you care for some more sobering thoughts, mosey on over to my blog.
Oh, and check this out:
http://karachi.metblogs.com/archives/2007/07/ardes hir_cowasj.phtml
[and http://www.t2f.biz]
Venues and events in K-Town! That’s new stuff for a person re-engaging with his home town in detail after almost a decade…new events, a new cast; and even a new nickname!
It’s heartening to see the CJ reinstated. I hope he will be able to pay some attention to the deplorable condition prevailing at the lower courts where corruption is shamefully so rampant that these places look more like a market place. The situation at the banking courts is also not satisfactory. Here the staff is indulged in ‘commercializing’ court record and no one , not even the judges, pay any heed to such complaints ,,,,infact they would not listen to such comp[aints,,,,,,,,,,