The Pakistani Spectator

The suo motu notice, issued by the Chief Justice around midnight (in panic?) to control damage from the whispering campaign about his sone, has fizzled out. It had to when there was no complainant, no defendant, not even an FIR. The court could do nothing more than ask the attorney general for “thorough probe and action.” But who can punish Arsalan, who did nothing wrong here, Salman Ahmad, who is a British national and has not filed a complaint anywhere, and Malik Riaz, who is not even mentioned in the episode?

The contempt of court case will also go nowhere. If Malik Riaz has his day in the court, he will expose so much about judges and rattle so many skeletons that he will have to be gagged immediately. (He has already been ordered not to talk to media.) As a way out, he may be persuaded to apologize formally so that the case against him may be closed.
What next? The newspaper columns and talk shows will not be enough to change the perception of most people about the Chief Justice. As vested interests stoke the fires, the perception will grow. On the other side,

چھریاں تیز کی جاتی رہیں گی

What may happen next? There are several possibilities:

Option #1 Prime Minister withdraws the executive order

The executive order that restored the Chief Justice and other judges in 2009 was unconstitutional. A valid order begins with the words, “By virtue of the authority conferred upon me by Article ___ of the Constitution, I hereby order as follows…” The executive order did not have these words because the Constitution, while having provisions for appointment and removal of judges, does not provide for the restoration of a deposed judge.
Here is the text of the executive order:
“Whereas the Prime Minister of Pakistan was pleased to announce on 16th day of March 2009 that the deposed Judges of the Supreme Court and High Courts including Justice Iftikhar Muhammad Chaudhry, the deposed Chief Justice of Pakistan shall be restored to the position they were holding immediately before 3rd day of November 2007.
“Now, therefore, the President of Pakistan is pleased to restore Justice Iftikhar Muhammad Chaudhry, the deposed Chief Justice of Pakistan to the position he was holding immediately before 3rd day of November, 2007. Mr Justice Iftikhar Muhammad Chaudhry will assume office of Chief Justice of Pakistan on 22nd March 2009 after retirement of Mr. Justice Abdul Hameed Dogar, Chief Justice of Pakistan on 21 March, 2009.”
The President and the Prime Minister do not have powers of Mughal emperors to restore judges “in their pleasure.” So, having realized his mistake, albeit quite late in the day, the Prime Minister, on the advice of the Attorney General and the Law and Justice Division, may conclude that his executive order was invalid and decide to withdraw it. He may add in the order that the Chief Justice no longer holds the office and henceforth his judgments, orders and actions will not be binding on the Government or any other authority. Thus the Chief Justice will become dysfunctional.
The Supreme Court may take it up but will not be able to strike down the new executive order when it had accepted the original one. If the first executive order was considered valid, the second one cannot be called invalid.

Option #2 Reference to Supreme Judicial Council by the President

It will be a case of déjà vu,

یہ تو وہی جگہ ہے، گزرے تھے ہم جہاں سے

However, it will be different this time. No mistake will be made that may lead to the case going to the Supreme Court, the way it happened the last time. The mistakes then made were:
a)    The Chief Justice was asked to resign even before the reference had been sent to the Council.
b)    The Supreme Judicial Council was not formed properly. If the Chief Justice was to step aside (because the reference was against him), the next senior-most judge should have been asked to head the Council but he (Bhagwandas) happened to be in India. Rather than waiting for his return a few weeks later, the judge next to him was appointed.
c)    The senior-most Chief Justices of two High Courts were brought in a special plane from Karachi and Lahore in the morning, while the Council was formed in the afternoon.
d)    The Chief Justice was removed under a law that many considered inapplicable.
This time, before sending the reference, the Government will assess carefully its prospects. The Council consists of the Chief Justice, two senior-most judges of the Supreme Court and two senior-most Chief Justices of High Courts. If the Government is sure of favorable judgment from at least three members, it will go ahead. (The last time three members of the Council were not even on speaking terms with the Chief Justice. If the reference had been filed properly and even one of the 35 charges had been proven, the Chief Justice would have been removed.)
The President may dust off the reference of 2007 and send it again. The Supreme Court had decided to “set aside” the reference. That was not a valid act. The Court may set aside a judgment of a lower court but not a reference that had not been even taken up by the Supreme Judicial Council. If submitted properly, the Council will have to take it up.
The President may add some new charges to the reference or may send a new reference based on new charges.

Option #3 Reference to Supreme Judicial Council by Malik Riaz

Malik Riaz Husain says, “میں اللہ سے رحم اور عدلیہ سے انساف مانگتا ہوں” He may get رحم any time but انصاف will be a problem.

Now that he cannot have his say in the media because of the gag order from the court, he may, in sheer desperation, decide to file a reference to the Supreme Judicial Council. (Previously, only the President could file a reference. Now any citizen can do it.) He may put all his charges against the Chief Justice, along with supporting evidence, in a reference and submit it directly to the Supreme Judicial Council. Under the law, the Council will have to take it up. The Council will have open hearings (under rules approved by Iftikhar Chaudhry himself before the trouble had started). So, he can say whatever he wants and it will be all over the media.

Option #4 Action replay of the Sajjad Ali Shah case

Most judges of the Supreme Court held court and decided that Chief Justice Sajjad Ali Shah could not hold the office because his appointment was in violation of the decision that only the senior most judge could be the Chief Justice.
In the present case, judges may hold court and decide that the Chief Justice was holding office on the basis of an invalid executive order. According to Nusrat Javed, of Aaj TV, seven out of 16 judges (excluding the Chief Justice) are already in the group opposing the Chief Justice. If two more join them, they will have majority and their judgment will be valid.

Option #5 Chief Justice calls it quits

The Chief Justice weighs his options. If he feels the opponents are gaining strength in damaging his moral authority and he may face worse situation as time passes, he may decide to call it quits. He will have two options:
a)    He may go on long leave until his retirement in December 2013. The President may appoint a new Chief Justice in his place.
b)    He may resign with immediate effect. It will be the most graceful way to go if it becomes very difficult or impossible to continue.

Nobody should expect history to repeat itself. Who will stand up and agitate for what Arsalan Iftikhar did and what his father failed to do? Who will convince the ordinary people that the father had nothing to do with the activities of his son and was never even aware of what he had been doing. There were many things that remained hidden the last time. This time nothing will remain under wraps if the matter prolongs.