Re: Pakistan’s top judge is suspended (Merged)
**Genuine or mala fide?
** By Shamim-ur-Rehman
Former Chief Justice of the Sindh High Court, Justice (retd) Wajihuddin Ahmed is critical of the various constitutional and judicial measures that have been taken against the Chief Justice of Pakistan, Justice Iftikhar Chaudhry, and maintains that never in the history of the country the judicial edifice has been challenged in this way.
In an interview with Dawn Magazine, he sounded warnings to be watchful of whether the reference against the CJ had been moved in all seriousness or if it was part of a conspiracy to make a hero out of him and to possibly use him later on.
The following are excerpts from his interview:
Q: How do you look at the present constitutional crisis and what impact will it have on the future polity of the country?
**A: **We have gone through a number of constitutional crises. This, however, beats them all. At no point in time has the entire judicial edifice been challenged in this way. It has been challenged before, but in a camouflaged manner. But this time it is as if the army chief has taken on the chief justice. The people of Pakistan this time have sensed what actually has come to transpire. For that we have to thank the media in general, and the electronic media in particular.
**Q: **Has the reference against the chief justice under Article 209 been made according to the law?
**A: **Unfortunately it is not the reference alone that is what seems to have led to the crisis. For some time there were discrete leaks about the purported improprieties of Justice Chaudhry, particularly with reference to his son’s advancement in life. These things, while they are rampant amongst politicians and bureaucrats, civilian as well as military, are not expected of a judge. That created a kind of alarm amongst the intelligentsia. The powers that be seem to have thought that an effective beginning had been made to bring down the CJ, and leaped headlong into a situation that was brought about by Naeem Bokahri’s letter. Though a few eyebrows were raised, since such kinds of letters are not written, and if written are not made public, those responsible apparently felt that they would face no resistance. They might have been correct had it not been for the photographs showing the CJ sitting meekly before the uniformed chief. That, I think, touched a raw nerve and things erupted. So, for the current situation, they have themselves to blame.
As for the merits of the reference, even if the story about the son is true, has any clarification been sought from the chief justice? Besides, such a thing is not foreign to Pakistan. Ordinary Pakistanis enjoy a lot of sense these days, and would like to know why the government has left others and got hold of one particular person.
** The reference also contains allegations that verbal orders were passed in the court to one effect while the detailed orders in the same cases were inconsistent or were altogether different. Some instances have also been cited. I will ask a very simple question: does a SC judge, who by definition includes the chief justice, sit alone when he passes orders? The minimum number required is two, but normally it is a bench of three judges. So what about the other two judges? If there were any such inconsistencies, what actions have been taken against them?**
** Besides, Gen Pervez Musharraf has said that there are other allegations as well and they include one leveled by a Peshawar High Court judge. The reference doesn’t say much about it, but through media accounts I know that the judge has talked about a family matter pertaining to the distribution of inheritance. The SC, according to him, had passed an improper order, and he was averse to the idea of filing a review petition because it would have come before the same bench. But if he had reservations about a particular judge, rather than going all the way to the president and the prime minister, why did he not file a simple application in the SC, saying that he had reservations with regard to a particular judge? Now here is a superior court judge, having a complaint of some kind and not following the procedures, not filing a review application, and going to non-judicial authorities. Why? This is the kind of things that do not appeal to one’s good sense.
****Q: **When the president is not in his camp office, can anybody sit there for hours and sift through the reference. Is the president constitutionally permitted to show the reference to the person concerned?
A: It is a time-honoured practice that superior judges all over the world do not routinely call on either the head of state or the government. Lately, some of our superior judges have been violating this golden rule. When that kind of a thing happens, you are likely to be overtaken by your own deviations. I know for a fact that Iftikhar Chaudhry had himself deviated from the tradition. What was he trying to do then? If you do these things, sooner or later you are bound to land yourself in difficulty. His predecessor, Irshad Hassan Khan, also used to do the same. This is something that the entire SC, as a body, should sit and talk about.
Now we come to the several hours spent by him at the so-called camp office. The government says that the CJ was briefed on the allegations against him in order to satisfy the rules of natural justice. One of those rules is that no one is to be condemned unheard. But that which transpired is extraordinary. First of all you say that he was not called and the meeting took place at Justice Chaudhry’s own instance. Was that an occasion to meet the requirements of natural justice? That is the first question. Even if you were following the dictates of natural justice, you had a reference available before you talked to the man. So what kind of compliance with natural justice was it? Not only that, while this exercise was going on, you were nominating an acting CJ, who was taking oath. It is some extraordinary way in which principles of natural justice were being followed. And then you have shown reference to the person concerned. You also want him to examine the supporting documents, and you leave the papers in his hand, and go for prayers. The prime minister also goes for prayers. Is the CJ not Muslim? Is he not supposed to pray? Even if he had to read those documents, and you had already made up your mind because the reference was ready, a copy could have been given to him to read. None of that was done, and he was let out at a time when the acting CJ had already taken oath. He was not even permitted to go to his own court. He was guided to his residence by those who were escorting him all the time. Extraordinary. It is these details that catch the eye.**Q: Does that mean showing the reference to Justice Chaudhry was not in the spirit of Article 209?
** A: That’s right.
**Q: **What about sending Justice Chaudhry on forced leave?
**A: **It is illegal because Article 209 does not permit it. On the contrary it says that a superior court judge can be dismissed in no other way than on the basis of an adverse report of the Supreme Judicial Council.
**Q: **You mean sending him on forced leave is also an illegal act.
**A: **Correct. This is the substance of what Article 209 postulates. The matter did not stop there as the SJC met the same day and despite knowing that Gen Musharraf could not have passed the kind of restraining order that he had, it passed an order of the same kind itself. Article 209 does not permit even that.
**Q: Does it mean that the post of the CJ has not fallen vacant?
** A: No it has not.
Q: Then how can we have an acting CJ?
A: An acting CJ actually can be appointed in the ordinary course when the CJ is out of the country, or is on leave or is unable to perform the functions of his office, or any other reason of this very kind. No other kind. Now none of these reasons subsists. In today’s situation you cannot appoint an acting CJ.
Q: But they are interpreting that ‘any other reason’ may include anything. It is a sort of another form of the doctrine of necessity.
A:** It is one of the fundamental rules of interpretation that where general words follow specific words in a statute, the general words are controlled by the specific words. And those general words are always interpreted to situations analogous to those which have proceeded. And not everything and all things under the sun. **(:hehe: some govt. supporters used this clause quite liberally over here..Where r they when u need them?)
Q: Can this validation be hit by the doctrine of implied repeal? What is this doctrine?
A: That has nothing to do with this. But let us assume that this is a case of implied repeal of the constitutional protection provided to superior court judges. A short answer to that suggestion is that a constitutional provision, neither express nor implied, is repealed by a sub-constitutional legislation. If you desire to repeal a constitutional provision or override it, you can do that only by a two-third majority of parliament. By simple majority you cannot overrule a constitutional provision. You cannot take away a constitutional protection.
**Q: **How do you see the appointment of Justice Rana Bhagwandas as the Acting CJ?
**A: **I was probably the first who questioned the appointment of Justice Javed Iqbal to that post and also the timing of that appointment, saying that if Justice Bhagwandas was away, and if an acting CJ had to be appointed, then they should have waited for him to return. At the same time, I had said that a proceeding under Article 209, even where it involves the CJ, does not call for an acting appointment at all. But then Justice Bhagwandas, when he came back, was in a peculiar situation. There was an acting CJ who was a step junior to him. A notification had been issued to appoint him as the acting CJ. If he had not taken oath, the earlier appointment would have probably continued. So he was in a no-win situation. He had to take oath. Now that he is in his office, he must examine constitutional provisions and if he comes to the same conclusions that many lawyers and judges have, then he should relinquish that office. He should continue to sit on the SJC as the senior most judge and let Justice Chaudhry decide on his own as to what extent he would perform the function of his office in that situation.
Q: The SJC has yet to decide on the objections raised by the CJ on its composition. What will happen if some of the judges against whom he has raised objections and those who are hit be the tradition of ‘not before me’ continue to be on the bench?
A: I am a firm believer in absolute transparency of judicial proceedings. If there is even the remotest doubt with regard to the propriety of a judge sitting in a judicial proceeding, that judge himself should not sit there. So I hope and I believe that if there are questions of this kind raised with regard to the SJC, members of the council would adhere to the time-honoured rules on the subject.
**Q: **The government is maintaining that people should not comment on these constitutional violations because the matter is subjudice. Lawyers, however, are continuing with their protests. How do you see the future of the judiciary as an institution? Is it going to see further erosion of its authority or is it going to have a cleansing effect? If Gen Musharraf prevails and the judges don’t respond to the wisdom of the common people, what will happen?
**A: **These are genuine fears. As regards the proceedings of the SJC, rules that were framed during the active days of Justice Chaudhry say that the proceedings would be in camera. Actually Article 209 does not contemplate the framing of any such rules of procedure. It does contemplate framing of rules of conduct which have been there all along. But rules of procedure, it does not permit. Since so much has been said in public about this particular case, it would be appropriate that the proceedings should be made public. Some precautionary steps can be taken to ensure unnecessary scandalisation, but if a blanket order is passed by the SJC prohibiting media reports of the proceedings, it would not be permissible. It is not permissible because it violates the fundamental rights of speech which is incorporated in Article 19 of the Constitution. And the law with regard to fundamental rights says that even if legislation is passed by a competent legislative body, which is parliament, and is not in line with any of the fundamental rights, then such a law would be void to that extent.
Q: If the SJC exonerates Justice Chaudhry and he comes back, what will be the fallout?
**A: **There are two aspects to this matter. If the reference has been made in all seriousness and the SJC exonerates Justice Chaudhry, the finding is likely to firm up the rule of law. The other aspect, which is my apprehension, my worry, is if this reference has been made with the ulterior objective of providing a clean slate to Justice Chaudhry to make him a hero now and use him later, the result can be disastrous, not only for the judiciary, but for the entire country. That is my worry. I hope this is only an apprehension.
**Q: **The government has politicised the whole issue and has talked of some conspiracy as well. Who could be hatching the conspiracy, if any?
**A: **The way things have happened, people need to be careful because there are many question marks.
Q: As a result of this controversy, where does Pakistan stand? Is it threatened or secure?
**A: **Undoubtedly the situation is one of concern. But whatever are the difficulties in a particular situation, if those who are confronted with the difficulties deal with them in a straightforward manner, the result can only be good. If not, naturally, it would be bad.
http://www.dawn.com/weekly/dmag/dmag2.htm
