An Unconstitutional Reference

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

Ever since the President sent a Reference to the Supreme Judicial Council (SJC) against the Chief Justice of Pakistan (CJP), Justice Iftikhar Muhammad Chaudhry, under Article 209 of the Constitution of Pakistan on that fateful day of March 9, 2007, public and legal opinion has been divided into two camps: one side opposing and the other side supporting the Reference. Various arguments have been put forward by both sides to support their contentions. Be that as it may, most seem to agree that the President of Pakistan is empowered to send a reference against the CJP under Article 209 of the Constitution.

A close scrutiny of the Constitution, however, reveals that the CJP cannot be the subject of a reference under Article 209 of the Constitution. Article 209 only permits the SJC to take up references against other Judges of the Supreme Court and the High Courts, and not the CJP. This is why, prima facie, there seems to be an apparent inconsistency and, one may dare say, conflict between Articles 209 and 180 of the Constitution and so much confusion and divergence of views on the subject.

At the outset, it may be pertinent to mention that, although it is made up of the CJP, two senior-most Supreme Court judges and two senior-most High Court chief justices, the SJC is neither a court nor a tribunal, judicial or otherwise. The SJC is a board of inquiry with the specific and exclusive authority to inquire into allegations of incapacity or misconduct of judges of the superior judiciary (i.e. the Supreme Court and the High Courts). The difference between a court/tribunal and a board of inquiry is that whereas a court/tribunal can pass a judgment and execute that judgment itself, a board of inquiry can only make a finding and, on the basis of such finding, make a non-binding recommendation to a separate executing authority for further action. It remains the executing authority’s discretion to decide on whether or not to take action on the basis of that recommendation. In the case of the SJC, the executing authority is the President of Pakistan. A further distinction between the two is that a court has the power to punish for contempt, whereas a board of inquiry does not. The rationale is simple: since a board of inquiry does not pass binding or executable orders, there can be no violation of such orders, and hence, no contempt. This view is reinforced by the fact that the SJC is not included in the definition of a “court in Article 204 of the Constitution, which confers upon the Supreme Court and the High Courts the power to punish for contempt.

Harking back to Article 209, in my opinion, the Constitution never intended it to be invoked against the CJP.

Firstly, the Constitution does not treat the CJP as an ordinary judge of the superior judiciary. This is evident even by a cursory glance at the nomenclature employed by the Constitution. A Chief Justice of a Provincial High Court is not known as the “Chief Justice of the Province, he is known as a “Chief Justice of the Provincial High Court. More specifically, as an example, the Chief Justice of the Lahore High Court is not called the “Chief Justice of the Punjab, he is referred to as “Chief Justice of the Lahore High Court. Similarly, the Chief Justice of the Sindh High Court is not called the “Chief Justice of Sindh, he is referred to as “Chief Justice of the Sindh High Court. The same may be said for the Chief Justices of Balochistan and Peshawar.

The Chief Justice of the Supreme Court, however, is referred, indeed addressed, by the Constitution, not as the “Chief Justice of the Supreme Court (mirroring the nomenclature used to refer to the chief justices of the high courts) but as the “Chief Justice of Pakistan. This is not only deliberate but meaningful. Under the scheme of the Constitution, the CJP is the head of the entire judicial branch of the State. Unlike the Chief Justices of the Provincial High Courts, who may best be described as “first among equals vis-à-vis their peer judges who sit on the benches of the High Courts, the CJP is not a “first among equals. His position is a more exalted one. The Constitution places the CJP on a high judicial pedestal, which is beyond reproach and he sits on a judicial throne which is a degree higher than the bench upon which sit the Honble Judges of the Supreme Court.

This may, at the outset, seem to be an argument based more on legal faith than legal fact, but a closer scrutiny of the Constitution shows that it carries legal weight. The Constitution defines the Chief Justice of Pakistan and uses an exclusive nomenclature for him that distinguishes him from the other Judges of the Supreme Court throughout the Constitution.

Let us consider some specific examples:

Article 176 (Constitution of the Supreme Court) reads: “The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined Here the Constitution has chosen the nomenclature “Chief Justice of Pakistan for the CJP, which it exclusively uses through the Constitution to mean the CJP.

Another example: Under the “Oath of Office for the Judicature contained in the Third Schedule of the Constitution, the oath uses the terms “Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province). Notice that, while referring to the “Chief Justice or a Judge of the High Court for the Province, it refers to the “Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan and not “Chief Justice or a Judge of the Supreme Court of Pakistan. Thus, in relation to the High Courts, where it refers to the “Chief Justice or a Judge of the Provincial High Court, it departs from that parallel when it refers to the “Chief Justice of Pakistan or a Judge of the Supreme Court of Pakistan instead of reflecting the parallel by saying the “Chief Justice or a Judge of the Supreme Court.

The same inconsistency is found when we compare Article 176 and Article 192 (Constitution of the High Court). Article 192 reads as follows: “(1) A High Court shall consist of a Chief Justice and so many other Judges as may be determined If it reflected the parallel of Article 192, Article 176 would have read as follows: “The Supreme Court shall consist of a Chief Justice and so many other Judges as may be determined Instead, it pauses at the end of “Chief Justice and adds the words “to be known as the Chief Justice of Pakistan to emphasis the fact.

Some may argue that this is only semantics and a choice of nomenclature and this does not mean that the CJP is immune from Article 209. So let us look now at Article 209 itself. Is the same special treatment of the CJP found in Article 209? If not, then well and good, but if so, then would it be out of place to arrive at the conclusion that there is a deliberate scheme behind it and the CJP sits on a different (and higher) constitutional pedestal from other judges of the superior judiciary?

Article 209(1) states that: “There shall be a Supreme Judicial Council of Pakistanreferred to as the Council. Article 209(2) prescribes the composition of the SJC as follows: “The Council shall consist of- (a) the Chief Justice of Pakistan; (b) the two next most senior Judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts.

This Article 209(2) is more important then it may, at first glance, seem. Its importance lies not only in the fact that it lays down the composition of the SJC, but also, because it uses the same nomenclature as in the rest of the Constitution. It tells us that the SJC shall have five members in total. It also tells us that there are three categories or levels of membership:- (i) the CJP; (ii) two next senior-most Judges of the Supreme Court and (iii) two most senior Chief Justices of the High Courts. So it is expressly distinguishing between (i) the CJP, (ii) Judges of the Supreme Court and (iii) Chief Justices of the High Courts. So Article 209(2) is placing the CJP in a category separate from those of other Supreme Court judges.

However, the real impact comes in Article 209(3), which reads as follows: “If at any time the Council is inquiring into the capacity or conduct of a Judge who is a member of the Council, or a member of the Council is absent or is unable to act due to illness or any other cause, then- (a) if such member is a Judge of the Supreme Court, the Judge of the Supreme Court who is next in seniority below the Judges referred to in paragraph (b) of clause (2), and (b) if such member is the Chief Justice of a High Court, the Chief Justice of another High Court who is next in seniority amongst the Chief Justices of the remaining High Courts, shall act as a member of the Council in his place.

Now lets step back a little. The phrase “Chief Justice of Pakistan is mentioned in Article 176. It, again, finds mention in the Oath of Office of the CJP under the Third Schedule. It is mentioned in Article 209(2) which prescribed the composition of the SJC. Yet, the phrase “Chief Justice of Pakistan finds no mention whatsoever in Article 209(3), which is a crucial provision because it contemplates and provides for contingencies in the event that a member of the SJC is absent or is unable to perform his duties on the SJC for any other reason. Did Article 209(3) forget to contemplate what would transpire in the event that the CJP, who, ex officio is the Chairman of the SJC, is absent or is unable to perform his duties on the SJC for any reason?

Those who may argue that the phrase “capacity or conduct of a Judge who is a member of the Council in the opening line Article 209(3) is wide enough to include the CJP will have a difficult time explaining why there is no corresponding contingency provided by Article 209 for the CJP in case he is the subject-matter of a reference? Article 209(3) is basically providing a contingency plan in the event that a judge whose conduct is under inquiry happens to be a member of the SJC. However, Article 209(3) only goes on to provide a contingency for two categories of judges: (i) “a Judge of the Supreme Court and (ii) “the Chief Justice of a High Court. It does not provide a contingency plan for the “Chief Justice of Pakistan.

Some may argue that the phrase “a Judge of the Supreme Court includes the CJP since he is, technically, a Judge of the Supreme Court. However, in no place does the Constitution refer to the CJP as a “Judge of the Supreme Court, the Constitution specifically and exclusively defines the Chief Justice of the Supreme Court as the “Chief Justice of Pakistan in Article 176 and this is reinforced by the fact that, throughout the Constitution, the Chief Justice is referred to as the “Chief Justice of Pakistan and the term “a Judge of the Supreme Court is reserved for all other judges of the Supreme Court other than the CJP.

The proof of this is very simple. The Judicial “Oath of Office contained in the Third Schedule of the Constitution is universal. There is a single oath for (i) the CJP, (ii) the Judges of the Supreme Court, (iii) the Chief Justices of the High Courts and (iv) the Judges of the High Courts. If a single oath is prescribed for all these categories of judges of the superior judiciary, the “Oath of Office in the Third Schedule would have simple read as follows: “That, as a (Judge of the Supreme Court of Pakistan or a Judge of the High Court for the Province or Provinces of . . .), I will discharge my duties In actual fact, the Oath reads as follows: “That, as Chief Justice of Pakistan (or a Judge of the Supreme Court of Pakistan or Chief Justice or a Judge of the High Court for the Province or Provinces of . . .), I will discharge my duties . . .

Why would the oath specify each category of judges separately, i.e. (i) Chief Justice of Pakistan, (ii) Judge of the Supreme Court of Pakistan, (iii) Chief Justice of the High Court of a Province, and (iv) Judge of the High Court of a Province? The reason is that the Constitution uses standard terms and constant nomenclature to refer to each category of judges. If the term “Judge of the Supreme Court of Pakistan meant to include the CJP, then the Constitution would have omitted the words “Chief Justice of Pakistan from the Oath as it would have been redundant. This is further supported by the fact that when a Judge is appointed a Judge of the Supreme Court, he takes this oath and when he is elevated to the Office of the Chief Justice, he again has to take the same oath as CJP. If “Judge of the Supreme Court of Pakistan included the CJP, why would a Judge of the Supreme Court of Pakistan, who has already taken this oath, have to retake the oath as “Chief Justice of Pakistan? The answer: the term “Judge of the Supreme Court, under the Constitution, does not include the CJP and, therefore, when a Judge of the Supreme Court is appointed CJP, he must retake the oath as CJP. The same logic runs throughout the Constitution. So the Constitution is remaining consistent in its use of nomenclature.

In fact, in the Constitution, the term “Chief Justice of Pakistan appears a total of 19 times and the term “Judge of the Supreme Court appears a total of 28 times. The terms are not used synonymously but exclusively. When the Constitution says “Judge of the Supreme Court it does not mean the CJP. It means a Judge of the Supreme Court other than the CJP. When the Constitution says “Chief Justice of Pakistan it does not mean any Judge of the Supreme Court. It means the CJP exclusively. Each nomenclature excludes the other.

Had Article 209 provided for a reference against the CJP, then Article 209(3) would have included a third sub-clause (c) which would have read something like this: “(c) if such member is the Chief Justice of Pakistan, the Judge of the Supreme Court who is next in seniority below him. However, no such sub-clause is provided in Article 209(3). Meaning thereby that the Constitution never intended Article 209 to be invoked against the CJP.

Therefore, the ambit and scope of Article 209 is limited to the following judges:-

(a) Judges of the High Courts;
(b) Chief Justices of the High Courts; and
(c) Judges of the Supreme Court.

However, it does not end here. Article 180 of the Constitution prescribes the circumstances in which an Acting CJP may be appointed. Under Article 180, only the senior-most Judge of the Supreme Court of Pakistan can be appointed the Acting CJP if (a) “the office of Chief Justice of Pakistan is vacant; or (b) the Chief Justice of Pakistan is absent or is unable to perform the functions of his office due to any other cause. There is no provision in Article 180 for the appointment of an Acting Chief Justice of Pakistan in the event that a reference is filed against the CJP.

One of the cardinal principles of natural justice is enshrined in the legal maxim “nemo debet esse judex in propria causa (“no man shall be a judge in his own cause). If a reference were to be sent to the SJC against the CJP, it is obvious that, under this legal principle, the CJP, as a member and ex officio Chairman of the SJC, should not sit in judgment of himself. The CJP would have three options: (i) to resign; (ii) to voluntarily go on leave and make himself “absent within the definition of Article 180(b); or (iii) to refuse to go on leave. If the CJP resigns, the reference is rendered infructious and the matter comes to an immediate end. If the CJP voluntarily goes on leave and makes himself absent, then an Acting CJP may be appointed under Article 180(b) for a limited period of time (in this period of time, as it will be demonstrated later, an Acting CJP cannot preside over the SJC). However, if the CJP were to refuse to go on voluntary leave and make himself “absent, then a constitutional crisis would ensue for there is no provision in the Constitution that empowers either the President or the SJC, before the completion of an inquiry under Article 209, to either dismiss, suspend, or send the CJP on forced leave or to declare him “non-functional. If this were the case, then provision would have been made in Article 180 to cater for such an eventuality. Article 180 is exhaustive and provides for all the eventualities in which an Acting CJP can be appointed.

At this juncture, it may be pertinent to mention that, in the current judicial and constitutional crisis, the Federal Law Minister, Mr. Wasi Zafar, has stated that the CJP has been sent on forced leave under Section 2 of the Judges (Compulsory Leave) Order, 1970 (Presidents Order No. 27 of 1970) as validated by the Validation of Laws Act, 1975 (the “1970 Order). The 1970 Order is in direct and fragrant violation of Article 209 of the Constitution, which states that “A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article. All mechanisms for the removal of a judge are exclusively provided for by the Constitution and Parliament does not have power, except through a constitutional amendment, to provide for any extra-constitutional mechanism for the removal, temporary or permanent, of judges belonging to the superior judiciary. Any law that is in contravention of the Constitution is void ab initio, i.e. it is dead on arrival. Therefore, sending the CJP on forced leave under the 1970 Order is blatantly unconstitutional on the touchstone of Article 209.

If the Constitution had envisaged that a reference could be filed against the CJP under Article 209 and bearing in mind the legal maxim that “no man can be a judge in his own cause, the Constitution would have provided a mechanism that would have allowed either the President or the SJC to “suspend the CJP or to send him on forced leave or render him “non-functional. The Constitution would have also provided for a corresponding ground for the appointment of an Acting CJP under Article 180 in the event that the CJP becomes the subject of a reference under Article 209. Such a ground may have been enshrined in a third clause of Article 180 and may have read as follows: “(c) the Chief Justice of Pakistan is the subject of a reference under Article 209.

Yet no such provision has been made in Article 180. None of the existing grounds provided in Article 180 can even widely be interpreted to include a reference under Article 209. A reference against the CJP under Article 209 does not render the office of the CJP “vacant under Article 180(a) nor does it make him “absent under Article 180(b). Nor does it render the CJP “unable to perform the functions of his office due to any other cause. The latter pertains to mental or physical incapacity, i.e. a disability in the person of the CJP, and not his legal incapacity. Under no circumstances can such a ground be interpreted to include a reference under Article 209 against the CJP. Let us assume, hypothetically, that an acting CJP has the authority to preside over the SJC (which, according to the Supreme Court, he does not). Had this been the case, there would have been a corresponding provision in Article 209 that would have provided for the appointment of an acting CJP in the event that a reference was to be brought against the CJP, who is the ex officio Chairman of the SJC. An important point to note here is that, in such an eventuality, the Chairman of the SJC would not be the ex officio Acting CJP. The Acting CJP would be the ex officio Chairman of the SJC. In either case, the enabling provision for the appointment of an Acting CJP is Article 180, not Article 209. So the absence of an express provision in Article 180 for the appointment of an Acting CJP in the event that the CJP is the subject of a reference under Article 209 is further evidence that the Constitution did not intend for Article 209 to be invoked against the CJP.

There are numerous other examples that support the view that the Constitution, deliberately and meaningfully, uses separate nomenclatures when referring, on the one hand, to the CJP and, on the other hand, to any other Judge of the Supreme Court. For example, Article 181 provides for the appointment of Acting Judges of the Supreme Court other than the CJP. Here again, the Constitution provides separate mechanisms for appointment of an Acting CJP (under Article 180) and for the appointment of Acting Judges of the Supreme Court (under Article 181). It is important to note that the term “Judge of the Supreme Court is used in Article 181 and if it were interpreted to include the CJP, not only would it conflict with Article 180, it would mean that a Judge of the High Court can be appointed as the CJP, which would be an absurdity and not what the Constitution intended. The interplay of Article 180 and 181 further reinforces the argument that the term “Judge of the Supreme Court excludes the CJP and the same is the case with the use of the term in Article 209.

Some legal commentators have, incorrectly, argued that the term “Judge of the Supreme Court includes the CJP because the term has been defined in the Constitution. This is not the case. There is no definition anywhere in the Constitution of the term “Judge of the Supreme Court or even “Judge that includes the CJP.

Now coming to the question, raised earlier, on whether or not an Acting CJP has the authority to preside over the SJC, the Full Bench of the Supreme Court of Pakistan, in its historic landmark judgment delivered in the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), popularly known as the “Judges Case, held the following:-

“We are of the view that Acting Chief Justices are appointed for a short time and for that reason, in the relevant Articles, automatic arrangement is provided particularly in the appointment of the Acting Chief of Pakistan, but no criterion is laid down in the provision of appointment of Acting Chief Justice of the High Courts. In all fairness, the period for such acting appointment should not be more than ninety days during which Acting Chief Justice may perform functions of routine nature excluding “recommendations in respect of appointment of Judges. We say so for three reasons. Firstly, Article 180, which provides for appointment of the Acting Chief Justice of Pakistan and Article 196, which provides for appointment of the Acting Chief Justice of a High Court, do not specifically provide that they can participate in the consultative scheme of the appointment of Judges as envisaged in the Constitution. Secondly, Acting Chief Justices are supposed to be functioning for a short time and, therefore, it would not be fair to allow them to interfere with policy-making matters and appointments in the Judiciary which should be left for permanent incumbents. Thirdly, Article 209 of the Constitution contemplates the composition of the Supreme Judicial Council which is supposed to be comprised of (a) the Chief Justice of Pakistan, (b) two next senior most Judges of the Supreme Court, and (c) two most senior Chief Justices of the High Courts. In the explanation appointment of Acting Chief Justices is expressly excluded which clearly shows that the intention of the Constitution-makers is that the Acting Chief Justices are allowed to function for a short time and more importance is to be attached to permanent Chief Justices and in the absence of permanent Chief Justices of the High Courts or, even for that matter, of the Supreme Court, the composition of the Supreme Judicial Council becomes imperfect and the Body as such becomes unfunctional.

The above judgment of the full bench of the Supreme Court of Pakistan, which is binding on the SJC, lays down the rule that an Acting CJP cannot preside over the SJC and without the participation of the permanent CJP, the SJC is “imperfect and, therefore, coram non-judice. It also lends credence to the argument that the CJP cannot be the subject-matter of a reference under Article 209.

There are two additional rationales that explain why the Constitution did not contemplate or provide a mechanism for filing of a reference against the CJP under Article 209.

Firstly, it did not want the Honble Judges, who make up the SJC, from being placed in positions where they may all be accused of being biased on the grounds of an inherent conflict of interest. In other words, all members of the SJC would stand to benefit if the CJP is removed because the CJP is senior to all of them. There is, therefore, an inherent or objective conflict of interest. All would move one rung closer to the Office of the CJP if the latter were to be removed. Furthermore, there would, particularly, be an inherent conflict of interest for the senior-most Judge of the Supreme Court, the acting CJP, because he would stand to benefit immediately and directly from the removal of the permanent CJP against whom a reference is being heard. The Constitution would not, in such circumstances, wish to place such an awkward and embarrassing burden on the senior-most Judge of the Supreme Court.

Secondly, the Constitution, to put it simply, does not foresee the possibility of a corrupt CJP. It is an approach borne out of constitutional innocence, if you will. The Constitution expects that only men of the highest integrity are appointed to the superior judiciary. By the time a judge reaches the pinnacle of the judiciary, he is supposed to have passed through the gauntlet of accountability and corrupt judges are supposed to have been weeded out by inbuilt constitutional safeguards, including the final filter that cleanses the judiciary, the SJC. In fact, to suggest that the CJP is corrupt is to admit failure of such constitutional safeguards. To have the CJP accused, let alone found guilty, of misconduct be it misuse of powers or corruption is an indictment of the entire judicial system as well as the State. It is something that is constitutionally unthinkable and politically undesirable.

In conclusion and, in view of the aforesaid facts and reasons, the CJP, cannot be the subject of a reference under Article 209 and this is due to a deliberate scheme of the Constitution. If Article 209 is to be invoked against the CJP, then it is necessary that both Article 209 and Article 180 of the Constitution be amended accordingly. Furthermore, in light of the Supreme Courts ruling in the Judges Case, an Acting CJP cannot preside over the SJC.

The writer is an Advocate of the High Courts based in Lahore.

Contact Information:

Rai M. Saleh Azam
E-mail: rmsazam@azam-rai.com