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The Chief Justice
By
Col. Riaz Jafri (Retd)
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 membe! rs 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 ‘unconstitutional anomaly’
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 J! udge, co uld 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 “said to be reinstated” 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 ‘release’ them. The exact words he used were “riha
karoonga” (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 – 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 ‘reinstatement’ 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, “Colonel, you have a point”.
· The End
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