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An Executive Assault on the Judiciary

Guest Post by: Rai Muhammad Saleh Azam
The writer is an Advocate of the High Courts based in Lahore

The reference filed by General Pervez Musharraf against the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry, and his “suspension of the Chief Justice of Pakistan (CJP) adds to the many instances of attacks on the judiciary by the executive branch of government in Pakistan, which, more often than not, has been dominated by military rulers. It is a direct and frontal assault on the independence of the judiciary intended to ridicule the judiciary, to undermine its constitutional authority and to prevent it from freely exercising its power of judicial review of executive actions. It is an assault that is most shameful, deceitful and Machiavellian in its scheme.

Ever since Pervez Musharraf came into power through an unconstitutional military takeover on 12 October 1999 (which the Constitution of Pakistan, 1973 terms as “high treason), he has been persistently and consistently acting in violation of constitutional norms and undermining and weakening Pakistans civilian institutions. This latest move against the CJP is intended to browbeat the judiciary into submission and subservience so that it cannot challenge executive authority or hold the government accountable for its misdeeds.

One does need to strain ones eyes to see that this move is underpinned by ulterior motives and a mala fide intent on part of the executive branch. This is a move to check a Chief Justice who was

  • (i) increasingly becoming judicially active,
  • (ii) taking bold and daring steps to hold the executive branch accountable on multiple fronts,
  • (iii) genuinely concerned with the cause of justice and the plight of the common masses of Pakistan
  • (iv) taking practical steps to reaffirm the rule of law and independence of the judiciary and
  • (v) exercising his suo moto powers to take judicial notice of illegal omissions and commissions of both the federal and provincial governments.
  • Particularly, a series of decisions and posturing by the CJP on key economic and social issues put the CJP-led Supreme Court on a collision course with the executive branch. The CJPs judgment which set aside the privatization of the Pakistan Steel Mills in which allegations of impropriety and lack of transparency were leveled against the Privatization Commission was the first blow against the government. It put a question mark on the entire privatization policy of the government and the credibility of the Privatization Commission, of which the Prime Minister himself was such a key player. Never, in the course of Pakistans history, had a court set aside such a major privatization. It was judicial activism at its finest.

    Subsequently, the CJPs position a number of issues further perturbed the executive branch. These included the CJPs position on the increasing number of missing persons in Pakistan on a petition filed by the Human Rights Commission of Pakistan, his position on the negative environmental impact of the New Murree development project, his blocking of a scheme to convert public parks into private sector commercial ventures, his reprimanding of the police for dereliction of duty in the face of the spiraling crime rate, lawlessness and the deteriorating security situation in the country and his position on the dual nationality of Parliamentarians that threatened to disqualify a number of Parliamentarians.

    The government was feeling increasingly insecure and threatened by the CJPs brand of bold judicial activism. Musharraf was, personally, feeling threatened because he felt that the CJP was a wild card on key political and constitutional issues affecting his future, particularly on the question of whether or not Musharraf could, constitutionally, continue to wear the uniform whilst holding the Office of the President of Pakistan. So, in Musharrafs view, the CJP had become a liability that had to be dealt with and, true to his cavalier and reckless style of going about governing, this is the manner in which Musharraf sought to resolve his problem.

    Musharraf hoped that he could twist the CJPs arm and he would capitulate under pressure and resign. However, it is now clear to the nation that this CJP is made of a different ilk. His refusal to bow down to military and executive pressure has renewed the faith of millions of Pakistanis in the judiciary. It is heartening to note that there still are (albeit a few) public functionaries who will not be afraid of standing their ground in face of injustice, who will not capitulate in face of immense pressure and who will take on the powers that be for the sake of doing the right thing. The CJP, in refusing to resign, is not only standing up for himself, he is standing up for Pakistan and its people.

    This entire episode underpins some fundamental issues. The judiciary is not subservient to the executive under the scheme and spirit of the Constitution. The CJP is not answerable to the Prime Minister or the President. He is only answerable to the Supreme Judicial Council (SJC) and his peer judges and, of course, to the court of public opinion. The manner which he was “called to answer frivolous allegations by the President and the Prime Minister was deliberately intended to insult and undermine the Office of the CJP. Pervez Musharraf, who illegally and unconstitutionally holds two offices that of the President of Pakistan and the Chief of the Army Staff had no right to summon the CJP, let alone to suspend him.

    If Musharraf had called the CJP in his capacity as the President of Pakistan, then, one wonders, why did Musharraf, dressed in his military uniform, chose the Army House, Rawalpindi (so-called “camp office) as the venue for the meeting? If, indeed, Musharraf wanted to talk to the CJP in his capacity as President, then Musharraf should have adorned civilian attire and called the CJP to the Aiwan-e-Sadr in Islamabad. The fact that the CJP was summoned to Army House, Rawalpindi and Musharraf met him in his military uniform means that Musharraf was misusing his position as the Army Chief to exert pressure on the Chief Justice to resign. It was a threat. Musharraf has, once again, abused his position as Army Chief to undermine, intimidate and threaten an important civilian institution. Prime Minister Shaukat Azizs presence in Army House was also insulting because it implied that the CJP (head of the judicial branch) was answerable to the Prime Minister (head of the executive branch), which is not the case. The CJP does not report to the Prime Minister under any circumstances because the Constitution envisages a system of checks and balances where the judiciary acts as a check on the executive branch. If the CJP were to be hauled up to explain frivolous allegations against him before the Prime Minister, then it would undermine the judiciarys constitutional role as a check on the executive branch. The right thing for Prime Minister Shaukat Aziz to have done was to decline Musharrafs invitation to be present on such an occasion to humiliate the CJP.

    President Musharrafs move itself is unconstitutional because:-

  • (i) The President has suspended the CJP, which he does not have the power to do under any provision of the Constitution. Nor is there any provision in the Constitution that empowers the President to declare a judge to be “non-functional. In fact, the announcement of the CJPs suspension or, rather, “non-functionality was made before sending the reference to the SJC under Article 209 of the Constitution.
  • (ii) Under Article 209 of the Constitution, the President does not have the power to remove or suspend the CJP without the recommendation of the SJC, which comprises of (a) the CJP; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts.
  • (iii) The President can only send a reference to the SJC against a judge. The SJC then conducts a hearing into the allegations and, after inquiry, submits its recommendations to the President. Only in the event that the SJC reports to the President that a judge is guilty of misconduct can the President proceed against that judge by removing him.
  • (iv) The constitution of the SJC itself is unconstitutional because even if the CJP himself is being inquired, then, by virtue of Article 209(3), the next senior-most Judge of the Supreme Court shall act in his place on the SJC. Supreme Court Judge Mr. Justice Javaid Iqbal has been appointed as Acting Chief Justice whereas Mr. Justice Rana Bhagwandas is the senior-most judge of the Supreme Court after the CJP. So the SJC, as presently constituted, is a forum non judice and lacks the competence to function under Article 209.
  • (v) Under Article 180 of the Constitution, only the senior-most Judge of the Supreme Court of Pakistan can be appointed the Acting CJP if (a) the office of CJP is vacant; or (b) the CJP is absent or is unable to perform the functions of his office due to any other cause. So the appointment of Mr. Justice Javaid Iqbal is also in violation of Article 180 of the Constitution since he is not the senior-most judge. Secondly, the criteria for appointment of an Acting Chief Justice has not been met since neither the Office of the CJP is vacant nor was the CJP absent or unable to perform his duties.
  • This entire sordid affair gives rise to the following questions:-

  • (a) What was the hurry in filing this reference against the CJP, when Justice Rana Bhagwandas, the next senior-most judge of the Supreme Court was outside the country? Couldnt the President have waited for Justice Bhagwandas to return? Couldnt the President have requested Justice Bhagwandas to return to Islamabad before filing the reference?
  • (b) If the President is going to file a reference against the CJP on the basis of a vague and frivolous letter written by a lawyer, will the President then also file a reference against a Chief Justice if, tomorrow, another lawyer were to write an open letter to some sitting Chief Justice with more serious allegations leveled against him? Is a letter all that it takes for the President to invoke Article 209 of the Constitution against the CJP?
  • (c) If the transfer of the CJPs son to the Punjab Police was illegal, then what action is the government going to take against all those in the executive chain of command who approved such a transfer? Would the government care to make the prosecution of all those officials public who were a party to this transfer?
  • (d) If Justice Iftikhar Muhammad Chaudhry is innocent until proven otherwise, if he is still the CJP and has not been found guilty of any misconduct by the SJC, then why is he and his family under house arrest and being held incommunicado? Why have his telephone links been severed? Why have the passports of the CJP and his family been confiscated? Why are the CJPs relatives being hounded by the intelligence agencies after speaking out against his illegal detention? Why were the flags of Pakistan and the Supreme Court removed from the CJPs official residence? Why has his name been removed from the website of the Supreme Court?
  • One hopes that the Honble Judges of the SJC realize that that this is not just a move against the CJP by the President, it is a move against the judiciary by the executive intended to undermine, tarnish and erode the image, integrity and authority of the judiciary. Removing the CJP in such circumstances would not be conducive to the judiciary or the interests of Pakistan. This is a turning point in the constitutional and political history of Pakistan. It is a moment of historical significance that will define executive-judicial relations for years to come. This is a time to protect the collective honour of the judiciary and to defend the Constitution of Pakistan. Let it not be said that we were not equal to the task.