Why was Chief Justice of the Supreme Court of Pakistan removed?

General Musharraf Fires Supreme Court Chief Justice in Unprecedented Display of Absolute Power
New-Pakistan.Com had Seen the Move Coming; Commentators Foresee "Judicial Crisis
Issue No 26, March 9, 2007
By Dr Waqar Kazmi

Pakistan's absolute ruler General Pervez Musharraf removed the Chief Justice of Pakistan, Iftikhar Mohammad Chaudhry, on charges of "misconduct" on March 9 and named Justice Javed Iqbal as Acting Chief Justice of Pakistan.

Musharraf's action is unprecedented even in Pakistan's checkered judicial history. Officials claimed that Musharraf acted on the advice of Prime Minister Shaukat Aziz and filed a reference against the Chief Justice with the country's highest judicial panel, the Supreme Judicial Council. The reference contains a litany of charges of misconduct, misdemeanor, abuse of powers and undignified behaviour based on an 'open letter' recently written and widely circulated by a pro-government lawyer and famous TV anchor, Naeem Bokhari.

Readers might recall that New-Pakistan.Com had wondered about Mr. Bukhari's motives in its issue two weeks ago. We had said then, "Given the murky nature of Pakistan's secret police maneuverings, it is equally possible that the Naeem Bokhari letter is part of a pre-emptive effort to humiliate the Chief Justice and ensure that Justice Chaudhry does not live up to his reputation as an egomaniacal maverick in the run up to the forthcoming presidential election."

Justice Iftikhar Chaudhry's alleged obsession with protocol, rude behaviour towards lawyers, seeking undue favors for his son, contradictions in verbal and written decisions have also been made part of the reference. The unanswered question, however, was why Musharraf had appointed a person with such weaknesses as Chief Justice in the first place.

The constitutional position is that the President cannot remove or suspend any judge except on the advice of the judicial council. According to reporter Afzal Khan, several retired judges appearing on Pakistan TV channels said that the removal of Justice Iftikhar Chaudhry and appointment of an acting chief justice was irregular. They argued that Justice Iftikhar Chaudhry would have suspended himself stopping hearing of any case till the decision of the judicial council, once Musharraf made his reference to the Judicial Council.

The Supreme Judicial Council consists of five members including three senior-most judges of the Supreme Court and two senior most chief justices among the four provincial high courts. Under Article 209 of the Constitution, the President can refer a case against any judge to this council and then has to implement the decision of the council which may recommend removal of the judge or absolve him of the charges.

Justice Iftikhar Chaudhry was appointed chief justice of the Supreme Court in June 2005 by General Musharraf. He was the youngest person to become Chief Justice and would have retired in 2014. Justice Iftikhar Chaudhry's appointment had apparently been made at the behest of former Law Minister Sharifuddin Pirzada, known as the Pakistan army's chief constitutional manipulator. It was expected that because of his well known personal weaknesses, the Chief Justice would be even more subservient and partial to the Musharraf regime than other Chief Justices in the recent past.

But Justice Iftikhar Chaudhry often surprised and upset the government with his judicial activism and a tendency to be a maverick. This is most likely the reason for his removal from office. Under him the Supreme Court delivered some landmark judgments including annulment of the privatization of the Pakistan Steel Mills, Questioning the New Murree scheme and the latest and most sensitive case of disappearances of people at the hands of security agencies.

Musharraf's reference against the Chief Justice is unique for two reasons: It is the first time in Pakistan's history that a reference has been filed against a Chief Justice and it is the first time a judge is being accused of misconduct by a ruler who appointed him.

In our informed speculative comment on Mr. Naeem Bukhari's letter against the Chief Justice we had said, "The presidential election is bound to generate judicial proceedings. The establishment's plan for these elections is elaborate and precariously balanced to ensure a semblance of legitimacy and international acceptance. Musharraf and his ISI campaign managers cannot share the details of these plans (who will be bought off, whose arm will be twisted etc.) with anyone, not even a friendly Chief Justice. But the Chief Justice could deliver a verdict in some minor election-related case that could jeopardize the elaborate and complex plans."

It was our assumption that the government was planning to humiliate the Chief Justice as, "A little humiliation at the hands of Naeem Bokhari, a well connected and generally pro-establishment lawyer, would put the Chief Justice on notice and ensure that he does not deviate even an iota from the script written for him by Musharraf's people."

It seems that instead of weakening the Chief Justice's resolve to continue along a zigzag course in his judicial decisions, the Bukhari letter persuaded him to stiffen his backbone. Once Justice Iftikhar Chaudhry told Musharraf that he would not be the general's puppet, he was removed.

According to Dawn, Former chief justices of the Supreme Court, senior lawyers and human rights activists have criticized General Musharraf's decision to suspend Chief Justice Iftikhar Chaudhry on the charge of misuse of authority.

Former chief justice Sajjad Ali Shah, who was unceremoniously removed during the Nawaz Sharif government, termed it 'an unprecedented occurrence'. "This has created immense insecurity amongst other judges and is another step towards the ruination of an institution. A chief justice has never been sent to the Supreme Judicial Council, but other judges have been tried and action has been taken against them," he was reported as saying.

Justice Sajjad Ali Shah observed that the Chief Justice cannot be removed, suspended or made 'non-functional' under Article 209 of the Constitution in its present form. He said under the relevant Article, the Chief Justice has to head the Supreme Judicial Council with two next senior most judges of the apex court and two senior most Chief Justices of the High Courts as its members. He said under Article 209 (3), if the inquiry is against a judge of the Supreme Court, the judge of the court next to him in seniority, and if such member is the Chief Justice of a High Court, the Chief Justice of another High Court next in seniority amongst the Chief Justices of the remaining High Courts shall act as a member of the Council in his place.

Justice Shah said the Constitution was silent on what to do in case the complaint was against Chief Justice of the Supreme Court.

He said the judge against whom a complaint is being considered by the Supreme Judicial Council, stops discharging his duties till the disposal of the case. He, however, said the orders for suspension or making a judge non-functional cannot be issued by the president. "This is against the principle of trichotomy of powers. He said all the organs of the state must function within their own scope and there should be no overlapping, interference or domination.

Justice (retd) Sajjad Ali Shah accused the government of weakening the judiciary and stressed that the judiciary must assert itself at this point of time. "The constitution and the constitutional institutions cannot function in the absence of the judiciary," he remarked. He was of the view that the action against the chief justice had a nexus with the upcoming polls.

According to Justice Shah, "the president" wanted to be elected again by the existing assemblies, and there were speculations that elections might be postponed for one year. He said important cases were being heard by the larger bench headed by the chief justice, which also included the one pertaining to enforced disappearances.

He said the government wanted to create an impression that democracy had failed to deliver and only the army can save Pakistan from total disaster. "My fear is that chaos will grip the country and the government will come up with a new constitution."

In reply to a question, he said the bold decisions in the Steel Mills and the kite-flying cases may have prompted the action against the chief justice.

Sajjad Ali Shah said the action against Justice Iftikhar Muhammad Chaudhry was different from his (Sajjad's) removal as chief justice. He said in his case the judges and the government had joined hands in a conspiracy to unconstitutionally remove him from office.

In reply to another question, he said even after suspending Justice Iftikhar Chaudhry, Justice Bhagwan Das, who was the senior most judge of the court after him, should have been appointed the acting chief justice.

Former chief justice Saiduzzaman Siddiqui, who ceased to hold office after his refusal to take a fresh oath in Jan 2001, said that under Article 209 of the Constitution, the president does not have the powers to remove any superior court judge except on the recommendations of the Supreme Judicial Council.

He said only the president was empowered to make a reference against a chief justice or judge of superior courts if he is incapable of properly performing the duties of his office or was guilty of misconduct. But before taking any action, he must wait for the outcome of the inquiry to be conducted by the SJC. If the SJC rejects the reference, the judge would continue to hold office.

Justice Wajihuddin Ahmed, who was also forcibly retired by Musharraf in 2001 following his refusal to take oath, said the government action was illegal, unconstitutional and unethical. It would lower the country's prestige. He said there was no vacancy in the office of chief justice and no acting chief justice could have been appointed.

If at all an acting CJ had to be appointed, the senior-most judge, Justice Rana Bhagwan Das, should have been given oath. He is on a visit to India and could have been recalled on short notice

Abid Hassan Minto, a prominent senior lawyer, feels that Iftikhar Chaudhry's suspension may have come about because some of his decisions were viewed as acts of dissension. "He was involved in some judicial activism and it is said that the government was allergic to him and his actions were being perceived as anti-government. This move has created several questions and is controversial," says Minto.

I.A Rehman, a leading human rights activist, also criticized President Musharraf's decision. "In a country where such a thing happens, it is a symptom of something very rotten in the state structure. The state is faced with such utter collapse of everything valuable and the cancer eating into the vitals of a democratic state has reached a very dangerous stage," says an irate Rehman.

"Sajjad Ali Shah was undone by his own colleagues. The state has been corrupting the judiciary for a very long time," he continues.

Asma Jehangir, chairperson of the Human Rights Commission of Pakistan (HRCP), seconded Mr. Rehman's opinion. "The removal of the Chief Justice of Pakistan is a bitter blow to the independence of the judiciary. There were rumours that the government wanted to remove him."

"Such a dismissal can only be acted upon after the Supreme Judicial Council decides on merit against an accused judge. The speed with which the Chief Justice of Pakistan has been removed shows that the executive is nervous of an already tame judiciary."

An official statement issued by HRCP doubts that Iftikhar Chaudhry's removal was prompted by any misuse of authority "as such judicial practices are fully tolerated, if not encouraged by the Executive. The process adopted is also illegal and irregular. A reference by itself cannot grant the Executive the powers to dismiss a judge of the superior courts.

"It is significant that the Chief Justice of the Sindh High Court was flown to the capital in haste and in a chartered plane to secure a prompt decision from the Supreme Judicial Council."