Suspension and Reinstatement of the Chief Justice of Pakistan: From Judicial Crisis to Restoring Judicial Independence?
A remarkable period of turmoil lasting from March to July 2007 has culminated in the reversal by the judiciary of an attempted dismissal of the Chief Justice of Pakistan by President General Purvez Musharraf. The lack of deference toward the executive unusually displayed by the Supreme Court of Pakistan, coupled with the rousing popular acclaim 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 standard in Pakistan, but the reinstatement of the Chief Justice could enable an emboldened Supreme Court to enter into a new era of respectability.
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. Labeled a “Lawyers’ Mutiny (external link) ,” the movement also generated public protests that is thought could even endanger President Musharraf’s hold on office.
The Chief Justice’s act of refusal against a generally powerful executive, and in the face of pressure, is unheard of in Pakistan, which has seen no less than four military regimes ruling the country for significant periods during its sixty-year history. In that time, executive-judicial relations have been strained and numerous judges have been removed, despite protective provisions provided in Pakistan’s present Constitution, promulgated in 1973. A number of judges have resigned in the face of court-packing, reductions in retirement ages, requirements to take fresh oaths, and other tactics of the government of the day. 
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.” At the same time, President Musharraf also invoked his authority under Article 209 of the oft-patched 1973 Constitution of Pakistan to refer the alleged abuses of office by the Chief Justice to a Supreme Judicial Council (Council). This is the first time that a Chief Justice has been made “non-functional.” Soon after, an Acting Chief Justice was sworn-in in a hastily arranged ceremony. As explained, the second senior-most judge was picked for the acting position because the senior-most judge was out of the country.
The reference to the Council, consisting of five Supreme Court Justices chaired by the Acting Chief Justice, went into session soon after the swearing-in 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.
The presidential reference 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 jurisdiction over the Chief Justice’s suspension. The Court admitted a petition filed by the Chief Justice challenging the legality of the reference to the Council. At first, the government argued against the admissibility of the petition on grounds that the Council was the competent forum for the reference made against the Chief Justice. It also asserted that the Council had the power to restrain the Chief Justice from performing his duties. Later the government offered, primarily claimed to show its “good intentions,” to accept the reference being decided by either the Supreme Court or the Council.
In a dramatic culmination on July 20, 2007, the thirteen-member Court rendered a historic decision to reinstate 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. His early experience does not appear to display anything to foreshadow his activist role as Chief Justice. According to a former president of the Balochistan Bar Association, he acted autocratically when he was the Chief Justice of Balochistan;Baloch lawyers were generally skeptical of the Chief Justice. Upon his dismissal, his unpopularity in Balochistan is stated to be evidenced by the fact that out of 2,000 practicing lawyers, only twenty to twenty-five turned up in his support at a public rally.
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.
Chef Justice Chaudhry’s independent streak had become evident soon after his appointment in Islamabad. Several populist rulings against the government displayed a type of judicial activism considered to be unsettling for a government used to a pliable court. Under him, the Supreme Court took action on its own initiative to question the government on the role of the military and apparent instances of injustices. According to a respected British weekly “[i]ndeed, wherever Mr. Chaudhry heard so much as a rumour of injustice … he summoned officials and demanded investigations.”
Chief Justice Chaudhry began investigations into cases of “forced disappearances” arising as part of the ‘war on terror’ in which the Pakistan military and Inter-Services Intelligence are stated to have imprisoned hundreds of persons without due process. Many of those who have “disappeared” are from Chief Justice Chaudhry’s native Balochistan Province where an insurgency is underway. His demand that the Attorney General investigate the disappearances has resulted in the return of some of the missing persons. At present, the Supreme Court has taken the matter under its immediate control in asking the government to provide accountability for the missing persons.
In another major ruling against the government, in August 2006, the Supreme Court under Chief Justice Chaudhry also prevented the sale of a state monopoly, Pakistan Steel, to private investors, based on allegations of kickbacks. Chief Justice Chaudhry ruled (external link) inter alia that:
- While exercising the power of judicial review, it is not the function of this Court, ordinarily, to interfere in the policy making domain of the Executive … relatable to the privatization of State owned projects… However, the process of privatization of Pakistan Steel Mills Corporation stands vitiated by acts of omission and commission on the part of certain State functionaries reflecting violation of mandatory provisions of law and the rules framed thereunder which adversely affected the decisions qua prequalification of a member of the successful consortium …, valuation of the project and the final terms offered to the consortium which were not in accord with the initial public offering given through advertisement.
In 2005, the provincial North-West Frontier Assembly passed a controversial bill, known as the Hasba Bill, which has raised concern in other parts of the country. The Bill seeks to establish a sort of ombudsman not only to inquire into corruption and maladministration by provincial government departments, but also to carry out moral and religious policing to ensure the protection of Islamic values. A number of the moral policing provisions were declared unconstitutional by the Supreme Court and it asked the Governor of the province not to sign the bill and thus avoid making it into law.
As previously stated, a further more significant issue, speculated upon by critics as providing the real reason behind the attempted removal of Chief Justice Chaudhry, is the fear that the Supreme Court would prevent President Musharraf from retaining his position as Chief of the Army and running for President in 2008. This fear is based on an address of Chief Justice Chaudhry in February 2007 when he told trainee military officers that he was of the opinion that President Musharraf could not continue as army chief if he ran again for office.
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. The previously unsung Chief Justice was “re-born as a hero of Pakistan’s long-dejected democracy.” After an initial period when he appears to have been held incommunicado, the Chief Justice went on speaking tours during which he avoided making comments on his own dismissal, but canvassed the concepts of the independence of the judiciary and the rule of law.
In contrast 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.
The Constitution of Pakistan pays heed to the theory of an independent judiciaryby 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 accordance with the Constitution.” Under Article 209, the Council may on its own motion, or on a reference 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.
Many of these legal issues are cogently analyzed in an opinion submitted by a lawyer based in Islamabad, referred to as a Rhodes Scholar with an LLM from Harvard Law School, who states: “Neither Article 209 or any other article of the Constitution authorizes the President or any other institution or individual to suspend any judge or declare his judicial office dysfunctional pending the Supreme Judicial Council’s inquiry.” The opinion notes that the suspension of the Chief Justice, apart from being a disgrace for the manner in which it was accomplished and for being questionable under law, has long-term implications on the already distressed credibility of Pakistan’s system of justice.
The Islamabad lawyer further argues that the Chief Justice is not a petty state official who can be suspended pending inquiry and claimed that if a judge under inquiry were required to be temporarily suspended by implication, the Constitution should have explicitly provided for such suspension. The lawyer asserts: “If a president subject to impeachment proceedings can continue to hold office, there is no reason why the chief justice cannot, so long as he is not found guilty of misconduct by his peers and removed by the president.”
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 the incumbent is absent or 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 alleged misconduct of the Chief Justice also creates a conflict of interest.
A petition challenging the jurisdiction of the newly constituted Council was filed in the Supreme Court on grounds, inter alia, that an acting Chief Justice cannot sit in the Council. The petition also asserted that the President has no constitutional power to remove the Chief Justice. Additionally, absent the legal authority of the Council to investigate the Chief Justice, the petition claimed that only the full bench of the Supreme Court is the competent authority to adjudicate the issue of any misconduct of the Chief Justice.
Another issue simmering in the background is the legal standing of President Musharraf himself. A noted Pakistani jurist who had resigned as a judge during the previous military regime of General Zia ul Haq and acted as counsel to Chief Justice Chaudhry claims that President Musharraf is not a duly elected president, noting that the Constitution article on presidential elections was temporarily amended to allow him to be elected through a vote of confidence, instead of secret balloting. Thus, the counsel asserts, President Musharraf had no authority to suspend the Chief Justice.
Council's Inquiry Stayed
The Council’s inquiry into the reference 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 competence 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 “[i]n view of the admitted fact that the present cases involve unprecedented 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 Affidavit
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. The Affidavit challenged the reference by the President to the SJC on grounds that the Deponent (Chief Justice Chaudhry) “was illegally and unlawfully restrained to perform his constitutional functions as a judge of this Honourable Court and as chief justice of Pakistan.” The affidavit does not state whether the Chief Justice was summoned to Army House, Rawalpindi, by President Musharraf or that he went on his own accord.
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 Affidavit further recites that the President then read from “small pieces of paper with notes on them” but there was “no single consolidated document.” The allegations were taken from a “notorious letter written by Mr. Naeem Bukhari [a broadcaster and lawyer, and a prominent critic of the Chief Justice whose letter is said to have played a role in the development of the referencewith absolutely no substance in them.” The Chief Justice is stated to have strongly refuted and denied the veracity and credibility of the allegations.
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.
Part G of the Affidavit plaintively recites the crucial order of the President: “The respondent [President Musharraf] insisted that the deponent should resign. The respondent also said that in case of the deponent’s resignation, he (the respondent) would ‘accommodate’ him (the deponent). He also said in case of refusal to resign, the deponent will have to face the reference which could be a bigger embarrassment for the deponent.”
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.”
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 reference 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 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. In the meeting with the Chief Justice the President referred to points that he had jotted down from the Prime Minister’s advice, according to the affidavit. The Chief Justice is also stated to have sought the meeting with the President, rather than being summoned by him.
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 narration 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].
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.
'Scandalous' Material on Chief Justice
At a hearing on July 2, 2007, the thirteen-member bench of the Supreme Court is reported to have been “visibly disturbed and angry” after finding some ‘scandalous’ material against the Chief Justice and other judges in the presidential reference placed before the Court by counsel for the government. The presiding judge declared the government’s evidence to be “vexatious and scandalous” without revealing the nature of the evidence. At the same time, the Court banned intelligence officers from the Court and ordered the building and residential premises of the judges to be checked for eavesdropping devices. Chief Justice Chaudhry’s lead counsel claimed that the evidence against the Chief Justice consisted of photographs taken inside his residence, as well as anonymous complaints and derogatory remarks about senior judges.
In a move characterized as the “mother of all unqualified and unconditional apologies,” the government tendered its regrets for the filing of materials that maligned and vilified the Chief Justice.
Soon thereafter, a government lawyer informed the Supreme Court that the prosecution had decided to dismiss one charge against the Chief Justice. The lawyer stated that President Musharraf had made the decision, but did not specify the reason.
Order of the Court
The Supreme Court’s final Order on the Chief Justice’s petition tersely 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. “[W]e 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 indicative of the lack of any other viable 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.
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 the dismissed Chief Justice has also provided a unique break with the traditions of a generally quiescent 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. An enduring change would require a deeper commitment to following neglected constitutional principles. A number of the recommendations made in 2004 by the International Crisis Group calling for a constitutional amendment addressing the need for transparency and extending accountability for judicial appointments beyond the executive and chief justices continue to bear relevance.
For more information on Pakistan see:
Prepared by Kersi B. Shroff, Assistant Director of Legal Research, Directorate of Legal Research, Western Law Division, with the assistance of Krishan S. Nehra, Senior Foreign Law Specialist, Eastern Law Division.
August 10, 2007
- Ali Khan, Washburn University School of Law, A Lawyers’ Mutiny in Pakistan, JURIST Legal News and Research, May 30, 2007, available at http://jurist.law.pitt.edu/forumy/2007/05/lawyers-mutiny-in-pakistan.php (external link)
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- A High Court judge has lamented that “by and large the judiciary in Pakistan tried, in times of crises, to avoid confrontation with the executive and went out of its way to take the path of least resistance.” Paula R. Newberg, Judging the State: Courts and Constitutional Politics in Pakistan 7 (1995). [Back to Text]
- 3 Nasir Iqbal, CJ Suspended:*Justice Iftikhar summoned by SJC on 13th for reference hearing*Ex-Judges call it a blow to judiciary’s independence; minister defends decision*Whither judicial activism? DAWN, Mar. 10, 2007, available at http://www.dawn.com/2007/03/10/top1.htm (external link) [Back to Text]
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- Constitutional Petition No 9 of 2006 & Civil Petition Nos. 345 & 394 of 2006 [Pakistan Steel Mills Case], Judgment of Iftikhar Muhammad Chaudhry, C.J., para. 4, available at http://www.supremecourt.gov.pk//hcjbd.htm (external link), the Supreme Court of Pakistan’s official website. [Back to Text]
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- The Constitution of Pakistan, 1973, Preamble, and Annex (Article 2A), respectively, wherein it is provided: “[T]he independence of the Judiciary shall be fully secured.” An up to date but unofficial copy of the Constitution is available at http://www.pakistani.org/pakistan/constitution/ (external link) [Back to Text]
- The intrigue of justice, Pakistan Think Tank , June 11, 2007, available at http://www.pakistanthinktank.org/default.php/p/articles/pk/72 (external link). Although not directly attributed in the featured article, the author appears to be Barrister Babar Sattar, of AJURIS, Advocates & Corporate Counsel. The Think Tank is stated to be the “Repository of Ideas of Leading-Edge Thinkers,” but the views expressed in the article are the sole responsibility of the author. [Back to Text]
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- Nasir Iqbal, supra note 4; Pakistan court halts judge probe, BBC News, May 7, 2007, available at http://news.bbc.co.uk/2/hi/south_asia/6632033.stm (external link) [Back to Text]
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- Pakistan government withdraws one charge against suspended chief justice, JURIST Legal News and Research: PaperChase, July 16, 2007, available at http://jurist.law.pitt.edu/paperchase/2007/07/pakistan-government-withdraws-one.php (external link). [Back to Text]
- Constitutional Petition No. 21 of 2007, available at http://www.supremecourt.gov.pk//judgment.htm (external link). [Back to Text]
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Independence of judiciary must to run government: President Musharraf, Associated Press of Pakistan, July 31, 2007, available at http://www.app.com.pk/en/index.php?option=com
_content&task=view&id=13876&Itemid=1 (external link). [Back to Text]
- Ahmad Noorani, President need not resign after SC verdict: Qureshi, The News, July 25, 2007, available at Open Source Center, SAP20070725005012 (subscription database). [Back to Text]
- International Crisis Group, Building Judicial Independence in Pakistan, Asia Report no. 86, Nov. 9, 2004, available at http://www.crisisgroup.org/home/index.cfm?=1&id=3100 (external link). [Back to Text]
- Dr. Manzur Ejaz, Washington Diary: Ideology and judiciary, Daily Times, May 30, 2007, available at Open Source Center, IAP20070720950048 (subscription database). [Back to Text]
- Newberg, supra note 3, at 5. Newberg’s study, though dated, provides a dynamic analysis of the role of the judiciary in Pakistan. [Back to Text]
- International Crisis Group, supra note 45 [Back to Text]
Last Updated: 08/07/2012