Judging the Chief Justice
By Dr Tariq HassanSatureday,July 21,2007
The writer is a lawyer based in Islamabad and a former chief of the Securities and Exchange Commission of Pakistan
March 9 this year may well be the turning point of Pakistan's judicial history. On this fateful day, the self-imposed President of Pakistan summoned the chief justice of Pakistan and effectively removed him from office by declaring him "non-functional". An acting chief justice was sworn in the same day and the Supreme Judicial Council (SJC or the Council), constituted under Article 209 of the Constitution of the Islamic Republic of Pakistan was summoned instantly to hear a hurriedly put together reference against the CJP. This manifestly improper action prompted an unprecedented reaction from the legal community. The ensuing legal battle that has been raging in the Supreme Court of Pakistan has raised many interesting constitutional issues. The purpose of this article is to examine both the substance and process of filing of the reference against the CJP by the president in the context of the relevant constitutional provisions.
The president is empowered to initiate an inquiry against a judge of the Supreme Court or High Court under Article 209(5) of the Constitution: If, on information received from the Council or from any other source, the President is of the opinion that a Judge of the Supreme Court or of a High Court-
(a) may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or
(b) may have been guilty of misconduct, the president shall direct the council to inquire into the matter.
The reference, dated March 9, 2007, filed before the SJC by the president under this Article (Reference), did not allege that the CJP was incapable of properly performing the duties of his office because of physical or mental incapacity. However, it did categorically state that the CJP committed misconduct by using his position to gain undue advantage for his son. As such, the reference passed a guilty verdict against the CJP prematurely. Nonetheless, it made the pretense of having the Council "inquire" into the matter:
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?
The President is required to act in accordance with the advice of the Prime Minister as per Article 48(1) of the Constitution. The President can require the Prime Minister to reconsider his advice but he is duty bound to act in accordance with the advice tendered after such reconsideration. Notwithstanding this general requirement for the President to act on advice of the Prime Minister, the President can act in his discretion regarding any matter in respect of which he is empowered by the Constitution to do so. As noted above, the President is empowered to initiate an inquiry against a judge of the Supreme Court or High Court under Article 209(5) of the Constitution. In fact, it appears from a plain reading of this provision that it is mandatory for the President to direct the Council to inquire into the matter if he is of the opinion that the judge may be incapable of properly performing his duties or guilty of misconduct.
In the instant case, so categorical was the premature pronouncement of guilt against the CJP by the Prime Minister that the President appears to have had no problem in following his advice:
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.
The language used in both the above-quoted paragraphs is noteworthy. While the Prime Minister was "pleased" to advise the President, the President was "pleased" to refer the matter to the Council. One would expect that the head of state and the head of government would ordinarily be "constrained" to take such an action against the head of judiciary in the country. The circumstances surrounding the reference makes one believe that this was not only an improper choice of words but is also reflective of their mala fide intentions.
The advice of the Prime Minister is required to be bona fide. And, the President, in following such advice, whether on his own volition or otherwise, has to apply his own mind to the case and form his own opinion in the matter. There is no evidence of this having happened despite the rhetorical statement to this effect in the Reference. Unlike the Prime Minister's advice, the President's opinion is not based on any independent corroboration or analysis of the facts. No effort appears to have been made by the President or, for that matter, even the Prime Minister to relate the alleged offences to the judicial code of conduct to be observed by Judges of the Supreme Court and of the High Courts issued by the Council under Article 209(8) of the Constitution.
The fact that the President proceeded to act on the following further advice of the Prime Minister is also evidence of the lack of application of mind on his part:
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.
The Chief Justice was effectively removed from office by being declared "non-functional" by the President. There is no provision in the Constitution that either supports or warrants this action. The President does not have any express or implied constitutional power or inherent power under the Constitution to declare the CJP "non-functional". He only has the power to remove the judge from office if, after inquiring into the matter, the Council reports to the President that it is of the opinion: (a) that the judge is incapable of performing the duties of his office or has been guilty of misconduct, and (b) that he should be removed from office.
The unconstitutionality of the action to declare the CJP "non-functional" was later sought to be rectified by sending him on "forced leave" under a lapsed legislation whose validity has been challenged in the SCP. Sending a person on forced leave is tantamount to suspension for which there is no provision in the Constitution. The Constitution very clearly provides that a judge of the Supreme Court or of a High Court cannot be removed from office except as provided by Article 209. While under the general principles of interpretation the power to appoint given in ordinary legislative enactments includes the power to suspend or dismiss, this principle is not applicable to constitutional provisions. Not only is there no express provision for suspension of judges in the Constitution, there are also no provisions regarding the suspension of the Prime Minister or the President in case they are faced with a vote of no confidence or impeachment respectively. To hold otherwise, would not only negate the sanctity of the Constitution but also jeopardize the smooth functioning of the highest judicial and executive offices in the country.
The manner in which the CJP affair has been handled is evidence of the patent abuse of power by the President. Calling in the spooks to intimidate the CJP, having them file spurious affidavits, and later withdrawing allegations of judicial misconduct from the Reference are all clear evidence of mala fide presidential actions. What is amazing is the speed with which the operation was sought to be carried out by the perpetrators. Not only was the reference prepared by the Law Ministry, endorsed by the Prime Minister, and approved by the President in less than half a day, an "acting" Chief Justice was sworn in (in the absence of the senior-most judge who was on vacation) and a session of the Council held the same evening as requested by the Reference:
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.
If it had not been for the unexpected reaction from the legal fraternity, the CJP would have been sent packing home within the shortest possible time. It is the resoluteness of the Bar and the resilience of the Bench that has saved the independence and integrity of the judiciary and maintained the supremacy of the Constitution. This harmonious relationship augurs well for the future.
(This article was written before the announcement of the Supreme Court verdict reinstating the Chief Justice.)
Email:
thassan@ijurist.org
http://www.thenews.com.pk/daily_detail.asp?id=65202