BEFORE THE SUPREME JUDICIAL COUNCIL, PAKISTAN
Reference by the President, Islamic Republic of Pakistan under Article 209 of the Constitution
The facts and circumstances necessitating this Reference by the president of the Islamic Republic of Pakistan (“Pakistan”) under Article 209 of the Constitution, briefly stated, are as under:
I. The Prime Minister of Pakistan on receipt of information, from several sources, with respect to the conduct of Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan (hereinafter referred to as, “the learned judge”) was pleased to advise the President of the Islamic Republic of Pakistan to “direct” the Supreme Judicial Council of Pakistan, in exercise of its powers under Article 209 of the Constitution, to inquire into the matter and report to the President whether the learned judge has been guilty of misconduct and further, whether he should be removed from office?
II. The advice of the Prime Minister was, inter alia, based on the following:
1. Dr. Arsalan Iftikhar is one of the sons of the learned judge. As narrated in paragraphs 2 to 25, the learned judge committed misconduct by employing his position to gain undue advantage for Dr. Arsalan Iftikhar. To secure this end he committed and was responsible for the commission of a number of unlawful acts. That all the acts narrated in paragraphs 2 to 25 were committed as a result of his influence and on account of the demands made by him and the pressure exerted by him. He unlawfully used his position as a judge and Chief Justice of the Supreme Court of Pakistan influence, harass and intimidate all concerned and compelled them to act in an unlawful manner. Such conduct is unbecoming a judge and is particularly reprehensible in the case of the Chief Justice of Pakistan.
2. Dr. Arsalan Iftikhar sought admission to Bolan Medical College in the year 1996. Having secured 639 marks with an overall “C” grade in his Intermediate Examinations he could not be admitted on merit. The threshold being 750 marks. The Chief Minister of Balochistan was approached who nominated him, “for admission in 1st year MBBS class in Bolan Medical College, Quetta, against leftover foreign vacant seats/special seats”.
3. On 22 June 2005 Dr. Arsalan Iftikhar was appointed as Medical Officer/Demonstrator in the Institute of Public Health, Quetta.
4. On 18 July 2005, a few days after Dr. Arsalan Iftikhar was so appointed, the Chief Minister of Balochistan passed the following order:
“Dr. Arsalan Iftikhar, Medical Officer, presently posted as Demonstrator, Institute of Public Health Quetta be transferred and posted as Section Officer (Technical) in Health department with immediate effect in the interest of public service. Please issue notification.” [Emphasis supplied]
The Chief Secretary, Balochistan, to whom these orders were addressed, directed these to the Health Department on that very day (18 July 2005).
5. The Health Department on 10 August 2005 referred the case to the Services and General Administration Department (“S&GAD”) as the authority “for posting/transfer of Secretariat staff is S&GAD Department.
6. On 11 August 2005, in a Summary for the Chief Minister, the S&GAD pointed out that “no … post in Technical quota is available against which Dr. Arsalan could be considered for posting as Section Officer”. It was, however, pointed out that 07 posts of Section Officers against the “quota of initial recruitment are vacant”, the case for placing the requisition of these posts with the Balochistan Public Service Commission was being processed separately. It was “proposed that Dr. Arsalan Iftikhar be considered for posting as Section Officer against one of the vacant post as a temporary arrangement”.
7. On 15 August 2005 a notification was issued to the effect that Dr Arsalan Iftikhar Demonstrator in Institute of Public Health, Quetta, was “transferred and posted as Section Officer (Dev) in Health Department, against existing vacancy with immediate effect until further orders.”
[Emphasis supplied]. It may be stated that as was pointed out in the Summary to the Chief Minister, there was no existing vacancy. The 07 vacancies had to be filled by initial recruitment through the Balochistan Public Service Commission. What was proposed was that at best Dr Arsalan Iftikhar be temporarily accommodated against one of these vacancies, till it was filled by a suitable candidate by the Balochistan Public Service Commission.
8. Nine days before the notification of 15 August 2005 was issued, the Ministry of Interior, Government of Pakistan, addressed a letter on 6 August 2005 to the Chief Secretary, Government of Balochistan:
The services of Dr. Arsalan Iftikhar, BS-17 officer of the Health Department, Government of Balochistan are required to be utilized in FIA in public interest [Emphasis supplied]
2. It would be highly appreciated if you could place the service of Dr Arsalan Iftikhar at the disposal of the Ministry of Interior for posting in FIA.
On 13 August 2005, two days prior to the notification of 15 August 2005, the S&GAD, Government of Balochistan conveyed to the Ministry of Interior, Government of Pakistan, its “no objection for placing the services of Dr. Arsalan Iftikhar (Health/B-17) at the disposal of Ministry of Interior for posting in FIA. While this letter was either in the mail or had not reached the “right” hands, the Ministry of Interior sent a reminder on 16 August 2005.
9. On 5 September 2005 a notification was issued by the Ministry of Interior, Government of Pakistan. Dr Arsalan Iftikhar was transferred and his services were placed at the disposal of FIA for posting as Assistant Director (BS-17) in the FIA, on deputation for a period of three years, in his own pay and scale, with immediate effect and until further order.
10. On 9 September 2005, the Secretary S&GAD brought the matter to the attention of the Chief Secretary, Balochistan. On 13 September 2005 the Chief Secretary Balochistan on behalf of S&GAD issued a notification pursuant to the notification of the Government of Pakistan. On 30 September 2005 Dr Arsalan Iftikhar received charge of the office of Assistant Director, FIA at Islamabad. This was notified on 24 October 2005.
11. Within four months of his appointment as Medical Officer/Demonstrator in the Institute of Public Health, Quetta, Dr Arsalan a BS-17 officer, who had not even completed the mandatory period of his probation, was transferred and posted first as a Section Officer in the Government of Balochistan against a non-existent vacancy and then sent on deputation as Assistant Director, FIA, to the Ministry of Interior, Government of Pakistan, for a period of three years; all in the public interest. And this for a person who had appeared thrice in the CSS competitive examinations and failed each time.
12. Under Rule 8 of the Health Department, Government of Balochistan, Service Rules 1984, a person appointed to the service against a substantive vacancy remains on probation for a period of two years if appointed by initial recruitment. Dr Arsalan, having been so appointed, on 22 June 2005, his period of probation would have been completed on 21 June 2007.
13. On 22 November 2005 the S&GAD, Government of Balochistan moved a summary to the Chief Minister, Balochistan proposing confirmation in services of Dr Arsalan Iftikhar “with immediate effect against the substantive post of Medical Officer in the Provincial Health Department by relaxing Rule 8 of the Balochistan Health Department (Basic Pay Scale 16 and above) Service Rules 1984 for completion of probation period of 2 years.” On 5 December 2005 the S&GAD, Government of Balochistan issued a notification whereby the services of Dr Arsalan Iftikhar were confirmed.
14. On 22 March 2006 in continuation of its notification of 5 September 2005, the Ministry of Interior issued yet another notification, Barely within 5 months of having assumed the charge of Assistant Director FIA in BS-17:
Dr Arslan Iftikhar (BS-17) Health Department, Government of Balochistan Quetta is transferred and his services are placed at the disposal of Director General Federal Investigation Agency for posting as Deputy Director (BS-18) in FIA on deputation basis for a period of three years….(Emphasise supplied)
On 7 April 2006 it was notified that he had assumed charge of the office of Dy Director (BS-18) FIA on 22 March 2006. On 9 May 2006 by a letter issued by the Office of the Director General Federal Investigation Agency it was clarified as follow:
Now he has been upgraded as Deputy Director in BPS-18 with retrospective effect, i.e. from the date of initial joining as per notification dated 22-03-2006.
On 9 May 2006 the Ministry of Interior issued yet another notification in partial modification of its notification of 22 March 2006. It was stated:
Dr Arslan Iftikhar has assumed the charge of the post of Deputy Director /BS-18, FIA on 3rd September 2005 with retrospective effect.
15. This done, a campaign was launched to induct Dr Arsalan Ifitkhar in the Police Service of Pakistan. As BS-17 officer Dr. Arslan Ifitkhar could have joined the Police Service only through the competitive services examination conducted by the Federal Public services commission but being in BS-18 made induction possible and the FPSC route could be avoided. As a first step he was to be sent to the Police Academy for training with PSP officers all of whom had been selected by the Federal Public Services Commission. The training was exclusive to PSP officers.
16. On 19 May 2006, the Ministry of Interior addressed a letter to Commandant, National Police Academy, Islamabad, stating that Dr. Arshaln Iftikhar, Deputy Director, FIA, was attached with the National Police Academy for training with CTP batch. The Commandant was requested to attach the said officer for field training along with under training ASPs to cover catch aspect of the required training.
17. On 24 May 2006, the Ministry of Interior again issued a letter to the Commandant, National Police Academy, Islamabad, stating that after the completion of the specialized training programme at the National Police Academy, the services of Dr Arslan Iftikhar be placed at the disposal of Punjab Police for further posting at Lahore for his District Attachment Training.
18. Pursuant to the letter of 24 May 2006, the National Police Academy, Islamabad, on 27 June 2006 relieved Dr Arslan Ifitkhar, “for completion of remaining training programme of 32nd CTP, and directed to report to Elite Police Training School, Bedian Lahore on 02-07-2006 doing six weeks Orientation Course.” After completion of the course he was to “report to CPO, Punjab, Lahore for Phase III part of training which is six months Field Attachment”.
19. In the meantime, the Prime Minister’s Secretariat was approached for the permanent induction of Dr Arsalan Iftikhar in the Police Service of Pakistan in BS-18. On 16 May 2006 the Prime Minister’s Secretariat sought the views of the Establishment Division in that regard.
20. The UO Note of the Prime Minister’s Secretariat was also circulated to FIA. On 3 June 2006 the Office of the Director General, FIA, stated that, “neither FIA requisitioned his services, nor was involved at any stage for his deputation or district attachment etc.” FIA, therefore, expressed its inability to offer any views/recommendations on the UO Note.
21. On 23 May 2006 the Establishment Division noted that as per the PSP (Composition, Cadre and Seniority) Rules, 1985, “the request of the officer for induction in PSP in BS-18 is not feasible.” In a separate note the Establishment Division observed that Dr. Arsalan Iftikhar could not be inducted in the Police Service of Pakistan without an amendment in the PSP (Composition, Cadre and Seniority) Rules, 1985. Such an amendment could only be made with the approval of the President.
22. On 31 May 2006 the Secretary, Establishment, was called by the learned judge for a meeting at his residence. The meeting took place at 2100 hours. The observations of the Establishment Division were also communicated to him. The learned judge appreciated the aforementioned reservations but the meeting ended with the learned judge insisting on:
(a) the induction of Dr Arslan Iftikhar in FIA preferably in BS-18;
b) his subsequent deputation to the Punjab government without their specifically mentioning the post against which he will be posted; and
c) simultaneous initiation of a proposal to amend the rules to provide for induction of FIA officers in the Police Service of Pakistan, and sought his son’s permanent induction in (BS-18) in the Police Service of Pakistan.
The Secretary, Establishment, communicated these demands to the Principal Secretary to the prime Minister, around midnight, the same evening. Soon thereafter the Secretary Establishment received a call from the learned judge saying that he had found a number of precedents of induction into various groups. On 1 June 2006 the papers were received from the learned judge. Later, the learned judge called the Secretary Establishment on the Green Line to enquire if the papers sent by him had been examined. The Secretary Establishment stated that it would take some time. The learned judge stated that orders of the Prime Minister be obtained by referring to these precedents. He was told that a written reference would be made to the Prime Minister’s Secretariat giving the precedents as well as the legal position. The learned judge responded that a written reference would “jeopardize the case and that this was part of a package and reference to the rules need not be made.”
23. The learned judge continued to “insist” that all concerned make the necessary changes and warned of “consequences” if his desires were not met. Due to the relentless pressure and the campaign of intimidation and harassment launched by him, ultimately a summary was prepared and submitted by the Establishment Secretary on 23 June 2006 to the Prime Minister for addition of a new “Rule 7-C” in the Police Service of Pakistan (Composition, Cadre and Seniority) Rules, 1985. The amendment was tailor made for Dr. Arsalan Iftikhar.
24. Since then the learned judge has almost on a daily basis exerted all kinds of pressure on the Prime Minister’s Secretariat to secure the approval of the summary aforementioned and for the consequent induction of Dr. Arsalan Iftikhar as an officer in the Police Service of Pakistan as a BS-18 officer.
25. He also used his influence and authority to have Dr. Arsalan Iftikhar nominated to attend the 2nd Training Course in Combating International Terrorism and Organized Crime from 30 October 2006 to 3 November 2006 in Istanbul. He was the only non-PSP officer and the only under training person to attend this course.
26. The learned judge is entitled to one 1600 CC car, but he has contrary to the norms and rules on the subject secured the use of the following cars for himself at Islamabad:
i) Mercedes Bens 3000cc
ii) IDJ-166 Toyota Corona Model 1993 – 1300cc
iii) ODF 6828 Toyota Corona Model 1993 – 2000cc
iv) CIA-9 Toyota Corolla Model 2000 – 1300cc
v) GP-8695 Toyota Corolla Model 2002 – 1300cc
vi) IDM-7976 Toyota Corolla Model 2003 – 1300cc
vii) IDM-7977 Toyota Corolla Model 2003 – 1300cc
27. Besides these the learned judge has the use of a fleet of cars at Islamabad, Lahore and Quetta.
28. On more than one occasion demands have been made to the Chief Minister or Governor of the province which the learned judge is visiting to provide the cars for their own official use to the learned judge during the period of his stay in the province.
Protocol over and above entitlement
29. The learned judge insists on being provided protocol which has neither been ever sought by or provided to a Chief Justice. Besides an outrider to lead the cavalcade the demand is for a number of police vehicles to follow him. The men have to be from elite units. At times specific demands have been made for an officer not below a particular rank to act as an outrider. Traffic has to be diverted or stopped while the convoy travels from one point in the city to another at high speed. Such actions are completely unprecedented for a Chief Justice.
30. Demands have been made for senior bureaucrats not below a particular rank to receive him at the airport when he arrives in a provincial capital.
USE OF PLANES AND HELICOPTERS
31. The learned judge frequently demands the use of the plane or aircraft of a Governor or a Chief Minister to travel from one place to another or for a private visit to offer condolences or to attend a function. The learned judge is well aware that he is not entitled to the use of these aircraft and helicopter but is in the habit of making these demands frequently and secures these by insisting on these.
Para 32 deleted
33. For some time a BMW car registration No “RAZIA-1” remained in the use of the learned judge and members of his family. The story hit the press and when it refused to die down the car was quietly moved elsewhere.
34. There are complaints of orders being verbally announced in open court in favour of one party and subsequently a written order at variance from the order announced in court being delivered. Two such cases have acquired particular notoriety. In one of these two cases it is alleged that amounts as large as Rs55 million may have been involved.
35. These matters have been subject of general and uncontradicted public comment, press reports, magazine articles, media comments by senior and respected members of the bar and former members of the superior judiciary.
36. The learned judge used the influence of his position to gain undue advantage by “insisting on an increase and enhancement in his entitlements or in securing the relaxation of the rules in that respect.
III. In the light of, inter alia, the foregoing facts and circumstances, and after a thorough consideration of the matter the Prime Minister of Pakistan advised the President of the Islamic Republic of Pakistan to refer to the Council, for its report, the question whether the conduct of Mr Justice Iftikhar Muhammad Chaudhry, Chief Justice of Pakistan in the following matters namely:
(a) in using his position, office, influence and authority as a judge of the Supreme Court and Chief Justice of Pakistan to:
(i) secure the appointment of his son Arsalan Iftikhar as a Section Officer in the Health Department, Government of Balochistan;
(ii) to have his son Arsalan Iftikhar sent on deputation by the government of Balochistan to the Ministry of Interior, Government of Pakistan as Assistant Director, FIA in BS-17;
(iii) to have his son Arsalan Iftikhar confirmed in the service of the Health Department, Government of Balochistan, much before the expiry of the mandatory period of probation in violation of the applicable rules;
(iv) to have his son Arsalan Iftikhar upgraded as Dy Director, FIA, in BS-18 with retrospective effect;
(v) to make efforts to have his son Arsalan Iftikhar inducted in the Police Service of Pakistan in violation of the rules and/or to seek an amendment of the applicable rules;
(b) in seeking and securing official vehicles and transport for his use much beyond the sanctioned and permissible limits;
(c) in insisting on protocol to which he was not entitled;
(d) in demanding and securing use of helicopters and planes to the use of which he was not entitled;
(e) in accepting accommodation with a litigant before the Surpeme Court;
(f) in using the BMW car “Razia 1”;
(g) in writing judgements which were contradictory to orders announced verbally in open court;
(h) in insisting on entitlements or having rules relaxed for such entitlements;
constitutes a ground of misconduct on which the learned judge ought to be removed from the office of a judge of the Supreme Court of Pakistan and the Chief Justice of Pakistan.
IV: The President of the Islamic Republic of Pakistan is of the opinion that the learned judge may have been guilty of misconduct and therefore, is pleased to refer the question aforementioned to the Council for the purpose of conducting an inquiry into the matter and after such inquiry as it may deem fit report to the President its opinion whether the learned judge has committed misconduct and whether he should be removed from the office of a judge of the Supreme Court and the Chief Justice of Pakistan.
V. That the Prime Minister was further pleased to advise the President that besides making the reference to the Council the President may simultaneously, in exercise of his constitutional and inherent powers under the Constitution of Pakistan and all other power enabling him in that behalf, direct that as a reference would be pending against the learned judge before the Council it would be neither in the public interest nor in consonance with the norms of judicial propriety that he continues to perform the functions of his office as a judge of the Supreme Court or as the Chief Justice of Pakistan. This would be in consonance with past practices as well. For these reasons, till such time that the reference has been disposed off by the Council and final orders in the matter have been passed, the most senior of the other judges of the Supreme Court shall act as the Acting Chief Justice. The President has been pleased to pass orders accordingly.
VI. It is requested that this reference may please by taken up as soon as it may be convenient, an inquiry into the matter be commenced and the reference be disposed off as expeditiously as may be possible for the Council.
General Pervez Musharraf President, Islamic Republic of Pakistan
Mr Justice (Retd) Mansoor Ahmed
Secretary, Ministry of Law, Justice and Parliamentary affairs Islamabad
Date: 9th March 2007