The Pakistani Spectator

On 9th March 2007, the history of Pakistan took another turn, unprecedented and un-imaginable. Gen Musharraf had called the Chief Justice of Pakistan, Justice Iftikhar M Chaudhry, at Army House Rawalpindi for a meeting but asked him to resign from his office.

When the CJ refused to oblige Gen Musharraf, he was pressurized by the heads of the army and civil intelligence agencies to bow his head. The CJ was detained at the Army House for five hours. During this time a reference was prepared against the CJ and the same was filed with the Supreme Judicial Council of Pakistan (SJC) in haste on the same evening. He was virtually house-arrested. On 18^th April 2007 Justice Iftikhar Chaudhry filed a petition before the Supreme Court raising many core issues like:

· “Constitution of the Supreme Judicial Council without the CJP,

· The personal bias of some members of the council,

· Alleged malafide of Gen Musharraf and PM Shaukat Aziz,

· Illegal suspension of a Chief Justice and forced leave,

· Illegal assumption of office by the Acting Chief Justice,

· In-camera proceedings of the SJC.”

Justice Chaudhry had also ‘requested the Supreme Court to restrain the council from hearing the reference as some members harbour bias against the petitioner, rendering them ineligible to be a member of the SJC.’ Justice Chaudhry’s constitutional petition under Article 184(3) of the Constitution of Pakistan was submitted through Chaudhry Aitzaz Ahsan which was admitted for regular hearing. A three-member bench was initially constituted to hear this petition, then made 5 members bench. Justice Chaudhry requested for ‘full court’ bench to which Gen Musharraf’s government had also agreed.

On 8^th May 2007, the Acting Chief Justice Rana Bhagwandas, appointed a 14-member ‘full court’ bench headed by Mr. Justice Khalilur Rahman Ramday to hear Justice Chaudhry’s petition with 22 other identical petitions. They announced to take up these petitions from 14^th May on day-to-day basis.

On 16^th May 2007, Sharifuddin Pirzada, the President’s Counsel, giving an overview of the judicial history of the country with regards to references filed against judges, argued against the maintainability of Justice Chaudhry’s petition. He argued before the full Court that the first reference in the judicial history of the country was filed against Justice Hasan Ali Agha in the Federal Court of Pakistan during 1951; the second reference was against Justice Ikhlaq Hussain and the third against Justice Shaukat Ali while the fourth one was filed against Justice Safdar Ali Shah. Justice Ramday, however, observed that all these references were filed during the martial law regimes except the one against Justice Hasan Ali Agha that was filed in a civilian regime and he was exonerated of all charges in 1951.

[The reference against Justice Ikhlaq was made out in Ayub’s regime; Justice Shaikh Shaukat Ali faced reference in General Yahya’s regime and Justice Safdar Ali Shah in General Zia’s regime. All these cases were made out in peculiar circumstances and were settled on different grounds. In all the three references filed during respective military regimes, the judges were sent home. Justice Sh Shaukat Ali was removed on the basis of the reference but the decision of his removal remained controversial.]

During the days of his turmoil, while his petition was being contested by Aitzaz Ahsan in the Supreme Court, Justice Chaudhry remained busy in having by-road tours throughout Pakistan. The lawyer community made his tours successful by boycotting the courts, arranging huge gatherings of people around and taking frequent help from workers of anti-Musharraf political parties. The media coverage spoiled Gen Musharraf’s image worldwide and the feedback of extensive criticism from all corners disturbed the government. The general populace started processions in favour of Justice Chaudhry and raised voices against the army rule openly violating the law and order. The proceedings in the Supreme Court were also covered by the media alive.

Getting annoyed over the situation Gen Musharraf’s regime took another turn by imposing censorship on the print and electronic media through an ordinance from the president’s camp. Till that moment the general populace of Pakistan had gone genius enough to frame their minds to seek cogent answers of certain questions like:

· Who made the Chief Justice of Pakistan non-functional?

· Who threatened the Chief Justice in military General’s uniform in the Army House and did not allow him to leave the room for 5/6 hours.

· Why uniformed spy chiefs confronted the Chief Justice on 9^th March at the president’s camp office and tried to impress on him to quit his post?

· Who carried out the attack on the office of Geo TV and the News in Islamabad?

· Who was responsible for bloodshed in Karachi on 12^th May 2007 in which 43 lives were lost. Who obstructed the Sindh High Court to take suo moto notice of the tragic events of that day?

Referring to an editorial note of ‘The News’ of 3^rd June 2007’, tens of more questions could be added to the above list. Gen Musharraf’s team was unable to grasp the fact that the media is a mirror and reflects reality. Also, if for the sake of argument, it is accepted that the media was presenting an unbalanced anti-military version then what about coverage in the international media. Next day the lawyer’s forum including the Supreme Court Bar Association announced that the lawyers of whole country would also fight this censorship against the media taking it another army attack on the fifth pillar of democracy in Pakistan.

26^th May 2007: Regarding a law point as to whether the Chief Justice Iftikhar M Chaudhry could move the Supreme Court under Article 184(3) of the Constitution, Justice Khalilur Rahman Ramday had observed that the full court was concerned with the determination of its jurisdiction for hearing of the chief justice case. It was held that the matter involving bloodbath on streets could not be termed a matter of no-interest for public; however, the point was that to what extent, the court could exercise its jurisdiction.

Strangely Barrister Ahsan had relied much on the arguments of Sharifuddin Pirzada, which he had once given in the Zafar Ali Shah’s case. (Quite opposite to it, in the current scenario Mr Pirzada was appearing as the counsel for Gen Musharraf opposing the maintainability of the CJ’s petition) In the Zafar Ali Shah case, Sharifuddin Pirzada had argued that the power of judicial review could not be ousted despite ouster clauses. Referring to Justice Yaqoob’s verdict: ‘….. when tyrannical system comes in the hands of usurper then the courts and people become silent.’ Earlier, in Zafar Ali Shah case Mr Pirzada had supported doctrine of necessity and in Haji Saifulah case it was held that although the assembly was dissolved illegally, but the court was not going to restore it. Chief Justice Naseem Hassan Shah had later observed in one of his decisions: ‘we should have restored the assembly’.

On 20^th July 2007, while announcing re-instatement of justice Chaudhry, full bench of the Supreme Court of Pakistan headed by Justice Khalil ur Rehman Ramdey issued a Short Order regarding Constitutional Petition No. 21 of 2007 filed by the Chief Justice of Pakistan and other 22 related petitions. For detailed reasons to be recorded later, the following issues arising out of this petition were decided as under:

Maintainability of CoP#21 of 2007 filed under Art. 184(3) of the Constitution:

· This petition is unanimously declared to be maintainable.

· Validity of the reference issued by the President under Art 209 of the Constitution: By a majority of ten to three (Justice Faqir Muhammad Khokhar, Justice M Javed Buttar, and Justice Syed Saeed Ashhad dissenting), the said direction to reference in question dated 9^th March 2007, for separate reasons to be recorded by the honourable judges so desiring, is set aside.

· Vires of Judges (Compulsory Leave) Order (President’s Order No 27 of 1970) and the consequent validity of the order dated 15^th March 2007 directing that the Chief Justice of Pakistan 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 15th March 2007 is also unanimously declared to have been passed without lawful authority.

· Validity of the order of the President dated March 9th 2007 and of the order of the same date of the Supreme Judicial Council restraining the Chief Justice of Pakistan from acting as a Judge of the Supreme Court and as Chief Justice of Pakistan: Both these orders are unanimously set aside as being illegal. However, since according to the minority view of the question of the validity of the direction of the reference in question, the said reference has been competently filed by the President. Therefore, this court should pass a restraining order under Article 184(3) read with Article 187 of the Constitution.

· Validity of the appointment of the Honourable Acting Chief Justice of Pakistan in view of the annulment of the two restraining orders and the compulsory leave order in respect to the Chief Justice of Pakistan: The appointments in question of the Honourable Acting Chief Justices of Pakistan by notification dated 9th March 2007 and the notification dated 22nd March 2007 are unanimously declared to have been made without lawful authority. However, this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and / or legal obligation by the Honourable Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de-facto doctrine.

· Accountability of the Honourable 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 does not require any adjudication and other legal and constitutional issues raised before us shall be answered in due course through the detailed judgments to follow.

Order of the Court:

By majority of ten to three (justice Faqir Muhammad Khokhar, Justice M Javed Buttar, Justice Syed Saeed Ashhad, dissenting), this original Constitutional Petition No. 21 of 2007 filed by the Chief Justice Iftikhar M Chaudhry is allowed as a result whereas the above mentioned direction the reference of the President dated 9^th March 2007 is set aside.

· As a further consequence thereof, the petitioner 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.

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

[Signatures of judges on the 13-member bench]

20^th July 2007

Next day Justice Chaudhry had taken over his seat as Chief Justice of Pakistan exercising his full control on judiciary and judicial matters with restored grace and honour.

Lawyers and civil society activists whooped with joy at the verdict in favour of Justice Chaudhry - the first time in Pakistan’s 60-year history that a civilian had challenged a military leader in the court and won. This was a defining moment for Pakistan - first time the people had true liberty and raised high slogans of ‘Go Musharraf, go’

Gen Musharraf said ‘… he would respect the verdict and would adhere to Justice Chaudhry, a stubborn judge with a tendency to rambling speeches, became an unlikely national hero when Gen Musharraf tried to fire him in March’; commented daily Guardian of 21^st July 2007.

Gen Musharraf’s support had plunged on 12^th May after supporter’s sparked violence in Karachi which left 40 dead. A veteran human rights activist, Asma Jahangir, now the president Supreme Court Bar Association had commented that there was a ‘clear divide’ between civilians and military. ‘Not only should Musharraf resign, I think he owes this country an apology.’

Another potential winner / beneficiary from this decision were exiled opposition leaders Benazir Bhutto and Nawaz Sharif. Ms Bhutto had described it as one of the most remarkable judgments in Pakistan’s history; the legal protest had become a “struggle against dictatorship”.

But the point to ponder is that if the Supreme Court is paying back to the lawyers and the civil society that well deserved respectability, impartiality, propriety and uprightness for which the Chief Justice was brought back.

 

 

 
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