The Chief Justice
12 December, 2013
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 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 is, however, silent in the case of the reference to be against the Chief Justice himself then who will head the SJC. Due to this lacuna in the c onstitution the SJC was declared unconstitutional and the reference could not be heard by it. Agreed that under the present article 209 the SJC could not be headed by Justice Bhagwan Das, but the question remains as to what has become of the Reference. 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 "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 release of the detained judges. There was no mention of their reinstatement in his speech. 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. 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? 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 they had not done either.
c. Even then the "reinstated" CJP Iftikhar Chaudhry 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 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".