Mr. Justice Babar Sattar
The removal of the Chief Justice of Pakistan is really an extremely terrible event. It will do seriously long-lasting damage to the Constitution, the rule of law and independence of judiciary, irrespective of the outcome and consequences of the SJC’s decision. Most unfortunate is that the judiciary is proving to be a divided house and extremely opportunistic. But for the immediate-term, I don’t think its over yet or will be over when the SJC finds the CJ guilty of misconduct on Tuesday. It is just the beginning of the end.
http://thenews. jang.com. pk/daily_ detail.asp? id=46441
The intrigue of justice
Legal eye
By Babar SattarThe independence and integrity of t he Judicature has been gravely tarnished with General Musharraf suspending the Chief Justice of Pakistan in violation of Article 209 of the constitution. In theory, independence of the judiciary is a grundnorm of Pakistan’s constitution, ensured in part by the constitutional security of tenure afforded to superior court judges. The constitution states that no judge of the High Court or Supreme Court can be removed (temporarily or permanently) from office except in accordance with the constitution. Article 209 then provides the mechanism wherein the president can remove a judge on the Supreme Judicial Counsel’s recommendation if, after conducting an enquiry, the counsel finds that the judge is (i) incapable of performing the duties of his office or (ii) is guilty of misconduct.
The Supreme Judicial Council comprises the Chief Justice of Pakistan, the two most senior judges of the Supreme Court, and the two most senior Chief Justices of the High Courts. In the event that an inquiry is being conducted against a judge of the Supreme Court, who is also a member of the Supreme Judicial Council, the next judge in the order of seniority is included in the council in place of such judge under inquiry. Under the constitutional system of checks and balances, the president only has limited discretion with regard to removal of a judge in terms of (i) directing the council to conduct an inquiry against a judge, and (ii) removing the judge if found culpable by the council. Neither Article 209 nor any other article of the constitution authorises 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 suspension of Chief Justice Iftikhar Mohammed Chaudhary is extremely disturbing, not just for the disgraceful way in which it was done or being questionable under law, but also for its long-term implications on the already distressed credibility of our justice system.
First, the fundamental principles of law that no man can be condemned unheard (audi alterm partem) and that a man is innocent unless proven guilty has been breached by the Musharraf Regime. The chief justice is not a petty state official who can be suspended pending inquiry. No judge can be condemned without being judged for misconduct and found wanting by the Supreme Judicial Counsel. If the judicial office or a judge under inquiry was required to be temporarily suspended by implication, the constitution should have explicitly provided for such suspension just like it provides a mechanism for a the replacement of a member of the Supreme Judicial Council under inquiry. 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. It would be within the discretion of a judge to refuse to discharge judicial responsibilities pending inquiry, just as it is within his discretion to determine numerous other conflicts of interests that might inhibit a judicious performance of his duties.
Second, the chief justice stands indicted due to his suspension and is unlikely to get a fair inquiry by the Supreme Judicial Council. The appointment of Justice Javed Iqbal as the acting chief justice is a violation of Article 180 of the constitution, which states that an acting chief justice can only be appointed when the Chief Justice of Pakistan is absent or unable to perform the functions of his office. None of the circumstances that necessitate the appointment of an acting chief justice existed. Also, the inclusion of Justice Javed Iqbal in the Supreme Judicial Council creates a conflict of interest. Only finding the chief justice guilty of misconduct would enable Justice Javed Iqbal to become the Chief Justice of Pakistan as otherwise he would retire prior to expiry of the term of the current chief justice. There is scant possibility of a fair enquiry being conducted by a council of peers led by a judge who has a personal interest in the outcome of the inquiry. Further, his appointment as acting chief, if made permanent, will also be a violation of the principle of seniority as Justice Rana Bhagwandas is the senior most judge of the Supreme Court after the chief justice.
Third, the prima facie evidence of the alleged misconduct and the manner and timing of the media trial conducted to bring the chief justice into disrepute makes the whole exercise suspect. Mr Naeem Bokhari wrote an exceedingly incriminating letter to the chief justice making insinuations regarding nepotism and abuse of office for pomp, apart from charging him with breach of dignity of judges and lawyers and blemished dispensation of justice. Many of Mr Bokhari’s allegations found resonance in the legal fraternity due to the gruff conduct of the chief justice as well as his fascination with cars and media that is considered unbecoming of a judge. But the letter also got appreciated and widely circulated for being seen as a truthful account of a lawyer, written in the interest of justice at the peril of being penalised for candour. While the suspicious saw the missive as part of a larger conspiratorial design, it was only after the chief justice was suspended that the Musharraf Regime’s strategy became obvious.
It is not hard to fathom why the chief justice is being banished: he began to take the constitutional guarantee of judicial independence too seriously and began to poke the judicial finger into holy waters. The chief justice’s judicial activism in the matter of missing people did not sit well with the military. The military regards determination of all security issues as falling within its exclusive domain and discretion. The chief justice’s notion of judicial autonomy and his campaign against the indiscriminate retention of citizens by security agencies were interfering with the military’s notion of operational autonomy. Further, in 2007 the Supreme Court will be called upon to take significant constitutional decisions, including (i) the issue of legality of General Musharraf’s simultaneous holding of the offices of president and chief of army staff, and (ii) whether the present assemblies are competent to elect General Musharraf for another term. Public responses of the chief justice on the judicial outcome of such legal controversies were not reassuring and he could not be relied upon to continue to mould the constitution to keep the general indefinitely in power.
The personal conduct and mannerism of Chief Justice Iftikhar Mohammad Chaudhary has been unbecoming of an exemplary judge. He also seems to lack the vision, charisma and temperament fitting of a leader likely to inspire confidence and transform the judicature into an emblem of public trust. But such critique is no ground for the chief justice to be removed from office. It took eight years after the unceremonious (yet honourable) dismissal of Chief Justice Seed-uz-Zaman Siddiqui along with other esteemed judges for the apex court to acquire a modicum of independence. If the Supreme Judicial Council removes Chief Justice Iftikhar Chaudhary from office out of fear or intimidation or pique, the credibility and integrity of the judiciary, already in scant supply, will suffer grievously. Palace intrigues belong to chambers of power and not to the house of justice. The guardians of the constitution should not get their hands further sullied.
The writer* is currently a Justice in the Pakistan Supreme Court based in Islamabad. He is a Rhodes Scholar and has an LL.M from Harvard Law School.
*This article was written before Hon Justice Babar Sattar before he became a Justice of the Justice Islamabad High Court.
