The Chief Justice
An epic making era taking the judiciary to its highest pinnacle of independence and authority has come to an end with the retirement of the Honourable Chief Justice of Pakistan Mr. Justice Iftikhar Mohammad Chaudhry. It is earnestly wished and hoped that his successors will steer the same course howsoever murky the civil and military waters be in the future too. It is also sincerely prayed that the corruption and unjust practices which are unfortunately so common in the middle and lower judiciary shall also be eliminated in due course of time. While the great achievements of the retiring CJP are many and numerous, there are, however, a few legal and technical issues that must also be mentioned to keep the records straight.
(1) The Reference against the CJP: Very briefly; a reference against the Chief Justice Iftikhar Mohammad Chaudhry alleging a few malpractices on his part was sent to President Musharraf by the PM Shaukat Aziz, who as per the constitution of Pakistan sent it to the Supreme Judicial Council (SJC) of Pakistan headed by the then present senior most justice of the Supreme Court Mr. Justice Javed Iqbal. However, soon Mr. Justice Bhagwan Das on his return from leave abroad and being senior to Mr. Justice Javed Iqbal took over as the head the Supreme Judicial Council for the hearing of the reference. An objection was raised by the defending counsel that under article 209 of the constitution the Supreme Judicial Council could only be constituted under the Chief Justice of Pakistan and no other judge. The article 209 though explains in details as to how a fresh member of the SJC will be appointed if the reference to be heard is against one of the sitting members of the SJC but is, however, silent in the case of the reference to be against the Chief Justice himself as to who will then head the SJC. Due to this lacuna in the constitution the SJC was declared unconstitutional and the reference could not be heard by it. It is strange that this â€˜unconstitutional anomalyâ€™ was not noticed by the honourable senior Justices like Javed Iqbal or Bhagwan Das who had accepted to head the SJC, or was objected to by any of its members! Anyway, agreed that under the present article 209 the SJC could not be headed by any other justice other than the Chief Justice himself (to hear the reference against his own self!!), but the question remains as to what has become of the Reference itself. Has it also met its natural death with the demise of the SJC or is it still alive? And, now that Justice Iftikhar Mohammad Chaudhry has retired could another SJC be constituted under the new CJP to hear the reference or! , more likely as Mr. Iftikhar Mohammad Chaudhry is no more a Judge, could he be proceeded against for his alleged corruptions and malpractices in an ordinary court of law?
(2) Reinstatement of Justice Iftikhar Chaudhry: The CJP Iftikhar Chaudhry was removed on November 3rd, 2007 on the proclamation of emergency in the country by President General Musharraf. He is, however, said to be reinstated on March 16th, 2009 by the Leader of the House elect Mr. Yusaf Raza Gilani. I have used words â€œsaid to be reinstatedâ€ for the following reasons:
a. Mr. Gilani was elected as the Leader of the House only and his inaugural speech listed several measures he would undertake after assuming office and one of these was to release the detained judges. It is pertinent to point out that there was no mention of their reinstatement in his speech. It was only to â€˜releaseâ€™ them. The exact words he used were â€œriha karoongaâ€ (shall order the release). Before he could complete the sentence, there were wild cheers and thumping of desks that drowned his voice in the din. If the sentence is replayed, it would be very clear that he was talking about future, which was logical because he was yet not sworn in as prime minister and could not have issued any such orders.
b. Did he ever issue any such Executive Order and to what effect, is not known? Quite some time later he had thrown an oblique hint at the CJP Iftikhar Chaudhry that what he had said on the floor of the assembly was yet to be ratified by the parliament and the cabinet which neither had not done by then.
c. Even if is assumed that the CJP Iftikhar Chaudhry was reinstated on the 16th March 2009 he did not start functioning immediately the next day as the Chief Justice of Pakistan but waited till Mr. Justice Dogar retired on March 21st, 2009 at attaining the age of superannuation.
d. The question arises, were there two Chief Justices in Pakistan holding the same office simultaneously during the period 16 March 2009 to 21 March 2009?
Do the above instances â€“ his reinstatement by the Leader of the House and not yet the PM, lack of ratification by the parliament, not assuming the charge immediately on his â€˜reinstatementâ€™ but allowing Justice Dogar to continue and complete his tenure till 21st March 2009 - not cast doubts on the legitimacy of the continuity of his term of office as the Chief Justice of Pakistan from June 30th, 2005 to 11 December 2013? And, if there was any break or breaks in the service, did it not warrant taking of a fresh oath of office on his part?
Incidentally, I had posed these questions by email to the learned Mr. Eitzaz Ahsan at the time of their occurrence to which he had answered me with a one liner only, â€œColonel, you have a pointâ€.