“CASE”

• “Chief Justice Chaudhry’s Constitutional petition No. 21

of 2007”
“Suspension and Reinstatement of the Chief Justice of Pakistan”

“PARTIES”

• “Chief Justice of the Pakistan Supreme Court, Iftikhar

Muhammad Chaudhry”

V/S

“President General Pervez Musharraf”

“CONTENTS”

• Executive Summary
• Suspension
• Reinstatement
• Profile of Chief Justice; Cases Decided Under Him
• Public Support
• Legal Issues
• Council’s Inquiry Stayed
• Chief Justice Chaudhry's Affidavit
• Government's Response
• 'Scandalous' Material on Chief Justice
• Order of the Court

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 •
Concluding
Remarks

“STATEMENT”

“From Judicial Crisis to Restoring Judicial Independence”

EXECUTIVE SUMMARY

A remarkable period of confusion lasting from March to July 2007 has

culminated in the problem by the judiciary of an attempted dismissal of the
Chief Justice of Pakistan by President General Purvez Musharraf. The lack of
respect toward the executive unusually displayed by the Supreme Court of
Pakistan, coupled with the moving popular approval and the support of the
legal profession for the Chief Justice’s reinstatement, merit an examination
of the episode which may markedly redefine executive – judicial relations in
Pakistan. Judicial independence has remained an unattained constitutional

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standard in Pakistan, but the reinstatement of the Chief Justice could enable
an emboldened Supreme Court to enter into a new era of respectability.

SUSPENSON

On March 9, 2007, when the President of Pakistan, General Purvez

Musharraf, met the Chief Justice of the Pakistan Supreme Court, Iftikhar
Muhammad Chaudhry, and reportedly importuned him to resign, the Chief
Justice’s refusal unleashed an unprecedented revolt led by Pakistani lawyers
in support of judicial independence and the rule of law in Pakistan.

President Musharraf is stated to have asked the Chief Justice to resign,

based on grounds of alleged misconduct, in the presence of Prime Minister
Shaukat Aziz and six other uniformed generals. The Chief Justice’s reported
refusal resulted in his virtual suspension and becoming “non-functional.”
This is the first time that a Chief Justice has been made “non-functional.”
Soon after, an Acting Chief Justice was confirmed in a fast arranged
ceremony.

During the proceedings in camera, the Council ordered Chief Justice

Chaudhry not to perform functions as the Chief Justice or as a judge of the
Supreme Court until the reference was decided. The suspended Chief
Justice was called upon to answer in a matter of days the allegations raised
against him.

Reinstatement

The presidential situation to the Council spelled out the allegations,

regarding the Chief Justice’s abuse of office. In May the Supreme Court
suspended the Council’s inquiry, and after deliberating further for over four
weeks, the Court ruled on June 9 that it had authority over the Chief Justice’s
suspension. The Court admitted a petition filed by the Chief Justice,
challenging the legality of the suggestion to the Council. At first, the
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government argued against the acceptability of the petition on grounds that
the Council was the skilled forum for the suggestion made against the Chief
Justice. It also asserted that the Council had the power to control the Chief
Justice from performing his duties. Later the government offered, to show its
“good intentions,” to accept the indication being decided by either the
Supreme Court or the Council.

In a dramatic culmination on July 20, 2007, the thirteen-member Court

announced a historic decision to restore the Chief Justice and dismiss the
charges leveled against him. Soon thereafter, President Musharraf publicly
accepted the ruling, stating that judicial independence was essential for
governing the country.

Profile Of Chief Justice

Cases Decided Under Him:

Chief Justice Chaudhry was the Chief Justice of the provincial Balochistan
Supreme Court when he became a judge of the Supreme Court of Pakistan in
February 2000. He was appointed as the Chief Justice of Pakistan in June
2005. Holder of an LLB degree, he had practiced law since 1974, and served
as the Advocate General of Balochistan in 1989-90.

In Pakistan’s capital, Islamabad, however, it was speculated that the reasons

behind the dismissal went beyond the stated allegations of the Chief
Justice’s misconduct in office. Pakistan is to have parliamentary elections
later in 2007 and a possible presidential election to follow in 2008.
Legislation enacted in 2004 has enabled President Musharraf, who assumed
power following a military coup in 1999, to continue to rule until 2007 both
as president and chief of the country’s army. The question of his continuing
as President, while still wearing a military uniform, has been a vexatious
issue in Pakistan. President Musharraf’s opponents claim that the real
reason behind the dismissal is his fear that the Supreme Court, led by Chief
Justice Chaudhry, would have prevented him from running for President in
2008 while retaining his position as Chief of the Army.

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Public Support

As the news of the Chief Justice’s treatment by the executive reached

Pakistan’s legal community, political circles and the general public, a
“protest movement spontaneously initiated by the overwhelming majority of
lawyers” gained momentum.

In difference to the lack of support in Balochistan, when he began the series

of cross-country public appearances, hundreds of supporters, including
lawyers in their traditional black coats, cheered him at all places.

In Karachi, Pakistan’s large southern port city, clashes between factions

supporting the Chief Justice and pro-government activists exacted a death
toll of more than forty persons. Chief Justice Chaudhry was forced to cancel
plans to attend the rally because of the streetfighting.

On July 17, at a gathering of lawyers near the Supreme Court in Islamabad,

even a suicide bomber is reported to have aimed an attack at the Chief
Justice’s supporters, and killed at least twelve persons.

Legal Issues

The Constitution of Pakistan pays attention to the theory of an independent

judiciary by providing security of tenure to superior court judges. Under
Articles 179 and 195, a judge of the Supreme Court or the High Court
respectively can be removed from office only “in agreement with the
Constitution.” Under Article 209, the Council may on its own action, or on a
suggestion from the President, recommend to the President that a judge is
incapable of performing the duties of office by reason of physical or mental
incapacity, or is guilty of misconduct. On receiving the Council’s opinion
that a judge should be removed on the above grounds, the President may
remove the judge from office. The Council is composed of the Chief Justice,
the two next senior-most judges of the Supreme Court, and the two most
senior Chief Justices of the High Courts of Pakistan.

The author also posits a further legal issue raised by the appointment of an
Acting Chief Justice. Article 180 of the Constitution provides that the
President can appoint an Acting Chief Justice when the office is vacant or
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 unable to perform the functions of the office due to any other cause. The
circumstances outlined in the Article are stated as not being found in the
manner in which Chief Justice Chaudhry was relieved from office. The
appointment of Justice Javed Iqbal as the Acting Chief Justice, who thus
joined the Council investigating the supposed misconduct of the Chief Justice
also creates a conflict of interest. The petition also asserted that the
President has no constitutional power to remove the Chief Justice.

Council’s Inquiry Stayed

The Council’s inquiry into the situation made by President Musharraf

proceeded until May 7, 2007, when on an appeal made by Chief Justice
Chaudhry to the Supreme Court arguing that the Council lacked capability to
try him, and after lengthy oral arguments from both sides, a Bench of the
Supreme Court ordered that the proceedings of the Council be stayed. The
Bench declared that “in view of the admitted fact that the present cases
involve exceptional important constitutional and legal issues, let the matter
be placed before the Full Court… Further proceedings before the Supreme
Judicial Council will, however, remain stayed till the hearing of the cases by
the Full Court.”

Chief Justice Chaudhry’s Affidavait

Chief Justice Chaudhry’s Constitutional petition No. 21 of 2007, filed against

the Federation of Pakistan, challenged his suspension by the President. In
an affidavit filed on May 28, 2007, the Chief Justice narrated for the first time
his version of events at the meeting with President Musharraf on March 9,
2007.

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According to the Affidavit, President Musharraf informed the Chief Justice
that a complaint had been filed against him by a judge of the Peshawar High
Court. When the Chief Justice responded that the complaint was not based
on facts, the President informed him that there were other complaints as
well. At this point, the President directed other persons to enter the room,
including the Prime Minister and other officials, a number of whom were in
uniform.

The President then claimed that, the Affidavit continues, the Chief Justice
had obtained cars from the Supreme Court for his family, an allegation that
was “vehemently denied.” The President is also stated to have pointed out
that the Chief Justice “was being driven in a Mercedes.” The President is
further stated to have mentioned that the Chief Justice had interfered in the
affairs of the Lahore High Court and had not accepted nor had he taken
heed of most of the recommendations of the Chief Justice of that Court.
At this stage, the Affidavit continues, the Chief Justice said “ ‘I wouldn’t
resign and would face any reference since I am innocent; I have not violated
any code or conduct or any law, rule or regulation; I believe that I am myself
the guardian of law. I strongly believe in God who will help me.’ ” Upon this,
the President “stood up angrily and left the room along with [some officials]
… saying that others would show evidence to the deponent.”

Government’s Response

The Government’s response was made in three separate affidavits filed in

the Supreme Court by the Chief of Staff to the President of Pakistan, the
Director General of the Intelligence Bureau, and the Director General of
Military Intelligence. All three affidavits sought to counter allegations that
the Chief Justice had been pressured to resign.
The Chief of Staff noted that the Government has received a number of
complaints against the Chief Justice and had prepared a draft situation
against him for the purpose of filing before the Council. The details of the
reference were brought to the notice of the President by the Prime Minister
in the presence of the Chief of Staff, the affidavit claimed. The Prime
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Minister is stated to have advised the President that a reference against the
Chief Justice be brought to the Council under article 209 of the Constitution.
The Chief of Staff recounted the following allegations of misconduct by the
Chief Justice:
➢ allotment of a land plot to the Chief Justice under a scheme benefiting
government employees, as defined in a statute, with a minimum of ten
years of service; the Chief Justice is stated not to be entitled under the
statute, nor to have the requisite years of government service;
➢ the Chief Justice is stated to have claimed reimbursement for gasoline
for a family car, all the receipts for which were claimed to be false; the
receipts were from a Shell station which sold only diesel;
➢ payments made by the Supreme Court for gasoline in a vehicle used
by the Chief Justice’s son;
➢ several irregular claims for reimbursement, amounting to “hundreds of
thousands of rupees,” for private expenses incurred by the Chief
Justice and members of his family;
➢ ordering two High Court judges not to attend court until their
retirement;
➢ an indiscreet campaign of character assassination conducted against a
number of High Court judges;
➢ intending to initiate misconduct proceedings before the Council
against twelve named High Court judges without cause; and
➢ other charges included: personal bias in appointment of judges;
misuse of authority; intimidation of civil servants and police officers;
seeking “High Visibility on Media”; using hooded and armed security
guards; an over-concern for protocol; and, a “Penchant for Expensive
Cars.”
The other two affidavits generally support the describing by the Chief of
Staff of the meeting between the President and the Chief Justice. The
Director General of the Intelligence Bureau additionally recounted that the
President was neither angry nor did he leave in anger, and also expressed
disagreement that the Chief Justice had referred to himself as “the guardian
of law.” The Director General of Military Intelligence restated that the
discussion with the Chief Justice was limited to the reference to be made to
the Council, and that it was “not open to any one of us to make any
demands on the CJP [Chief Justice].

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Later, the government also placed on record documents and material it had
relied upon prior to the order of suspension issued against the Chief Justice.

Order Of The Court

The Supreme Court’s final Order on the Chief Justice’s petition shortly noted:
➢ By majority of 10-3 … Constitutional Original Petition No. 21 filed by
Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan,
is allowed as a result whereof the above-mentioned direction (the
Reference) of the President dated March 9, 2007, is set aside. As a
further consequence thereof, the petitioner CJP [Chief Justice of
Pakistan] shall be deemed to be holding the said office and shall
always be deemed to have been so holding the same office.

The Court reserved all other legal and constitutional issues raised before it
to be answered in due course in detailed judgments.

On learning of the Supreme Court’s decision, the Prime Minister of Pakistan

declared the government’s acceptance of the ruling. “We must all accept
the verdict with grace and dignity reflective of a mature nation…. The
Constitution and the law have prevailed, and must prevail at all times.”

President Musharraf’s firm public statement may be investigative of the

lack of any other possible option: “I accept the judgment of the judiciary
and honour it,” adding that judicial independence was essential to
governing the country. A spokesman had earlier stated that the President
would not resign on account of the decision, arguing that the President was
not a party to the matter and had only acted as a constitutional conduit.

Concluding Remarks

The courageous decision of the Supreme Court to reinstate the Chief Justice
stands in contrast to past decisions in which the judiciary has “endorsed and
abetted” military regimes in Pakistan. The role played by popular support for

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the dismissed Chief Justice has also provided a unique break with the
traditions of a generally quiet public. “This is the first time in the history of
Pakistan that a strong people’s movement has taken shape and demands an
independent judiciary.”

The decision nonetheless is small medicine for the radical changes needed
to restore confidence in the judiciary. An overpowering executive has long
wielded control over the courts and is unlikely to be deterred by this single,
albeit wounding, decision in exercising restraints in the system of
appointment and removal of judges. Limits on judicial independence have
been the hallmark of judicial judgments in Pakistan and the courts have
generally functioned on the basis of privilege, as much as right.

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