A ray of hope
By Anees JillaniTuesday,August 07,2007
On July 20, the Supreme Court of Pakistan, after detailed hearings from May 15 till the date of judgment, held the Constitutional Original Petition (number 21 of 2007) of the CJ to be maintainable. By a majority of 10 to 3, the validity of the reference issued by the president under Article 209(5) of the Constitution on March 9, 2007, was set aside. The President's Order number 27 issued in 1970 relating to the judges (Compulsory Leave) Order under which President Musharraf had sent the chief justice on leave on March 15 was unanimously declared to be ultra vires.
The validity of the March 9 Order of President Musharraf and of the SJC Order of the same date restraining the chief justice from acting as a judge of the Supreme Court and/or CJ were both unanimously set aside as being illegal. As a consequence, the CJ was declared to be holding the CJ office and to have been always holding it. There was, however, a minority view on this question which found that the reference in question had been competently filed by the president; and the court, therefore, could pass a restraining order under Article 184(3) read with Article 187 of the Constitution.
The appointments of the acting chief justices through the March 9 and the March 22 notifications were unanimously declared to have been made without lawful authority. It was, however, held that this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and/or legal obligations by the acting chief justices during the period in question and this declaration is so made by applying the de-facto doctrine.
In the end, the larger bench of the Supreme Court consisting of 13 judges stated that it has never been anybody's case before it that the CJ was not accountable. The court accordingly did not adjudicate on this issue; and stated that all other legal and constitutional issues raised before it shall be answered through the subsequent detailed judgment.
The whole legal community is in a euphoric state since July 20. Almost all, with the exception of perhaps President Musharraf, was expecting the court to reinstate the CJ. However, few were expecting the judgment to go to this extent by even declaring the presidential reference against the CJ to be illegal. The judgment is being praised as a landmark one, and many are expecting it to revolutionise the state of affairs in the country. Many even in the presidential camp privately criticised the suspension of the CJ and attributed it to lack of judgement on the part of the coterie of sycophants surrounding the president.
The procedure for removal of a Supreme Court or a High Court Judge under Pakistan's Constitution is different from that of its Indian counterpart. Under article 124(4) of the Constitution of India, a judge cannot be removed except by an order of the president, passed after an address by each House of Parliament. The address is made by each House after a resolution to that effect has been passed by it by a majority of the total membership of the House, and simultaneously, by the majority of the two-thirds of the members present and voting on the resolution. The two Houses are required to pass such resolutions separately in the same session of the Parliament. The details of the procedure for investigation and proof of misbehaviour or incapacity of a judge, and presentation of the address by each of the Houses can be regulated by the Parliament, by law which is presently the Judges (Inquiry) Act 1968. It goes without saying that the Indian procedure is quite cumbersome and obviously has deliberately been made so to make it difficult for the executive to remove a judge of the superior court.
In the case of Pakistan, a judge of the Supreme Court or of a High Court can be removed under the Constitution's article 209. This article 209 talks about a SJC, consisting of the CJ, the two next most senior Judges of the Supreme Court; and the two most senior Chief Justices of High Court. The president can ask the council to 'inquire into the matter' as to whether a judge has been guilty of misconduct if he comes to know about the misconduct from any source; the Council can also take notice of the misconduct on its own motion.
The judge whose conduct is being reviewed obviously cannot continue sitting in the council if he is a member; and the next senior most member replaces him. Article 209(4) further says that if, upon any matter inquired into by the council, there is a difference of opinion amongst its members, the opinion of the majority shall prevail, and the report of the council to the president shall be expressed in terms of the view of the majority.
Article 209(6) says that after inquiring into the matter, the council shall report to the president as to whether the judge has been found to be guilty of misconduct; and it shall be the council that will advise the president as to whether the judge should be removed from office. If so advised, the president may remove the judge.
The constitutional provision on this subject is simple and quite basic. Firstly, it says that a judge of the Supreme Court or the High Court cannot be removed, except through the SJC. Secondly, the provision talks about the membership of the council, and says that the judge whose conduct is being inquired into cannot continue to sit on the council as a member. Thirdly, it says that if the president finds out through any source about a misconduct involving a judge he can refer the matter to the council to look into the misconduct. Fourthly, it will be the council that will find the judge guilty or not guilty, and it will only be the council that will advise the president as to whether to remove the judge or not.
The matter is thus not as complicated as it had been made out to be. The president was obviously wrongly advised that prompted him to take an unconstitutional step in the shape of `suspending' the CJ. He had no authority under the constitution to do this.
And the president has paid the price for this folly. It is nothing short of an irony that he, along with the prime minister, is so far refusing to take any action against the Law Minister, the Law Secretary, or other relevant officials. An easy way out during the midst of the court hearings was to sack all or a few of these individuals and withdraw the reference. However, the rulers had a haughty air about the whole matter.
The decision has given the judiciary immense confidence and the imbroglio has culminated in strengthening the institution in relation to the executive and the parliament. The past few months have also shown to each and every judge in the country that the people appreciate courage in a judge and give enormous respect to anyone who stands up against an unjust and unfair authority. It has given the judiciary an icon in the shape of the present and newly reinstated chief justice whom some have started referring to as the 'pir' of the lawyers. The crisis also revealed the lacunae in the constitutional provision regarding the issue of removal of a judge in the event of a genuine instance of misconduct, misbehaviour, or incapacity. One may hope that the Supreme Court in its detailed judgement would resolve this latter gap.
The writer is an Islamabad-based advocate of the Supreme Court of Pakistan. Email:
aneesjillani@yahoo.com
http://www.thenews.com.pk/daily_detail.asp?id=67237