Re: This is this SC and that was that SC
Ok… I agree with you on this point… Strictly speaking, Musharaf took the constitution route during the the initial problem with the CJ. That somthing I agreed on previously if you read my post… I had no problem with Musharaf on the the manner in which he went about trying to remove the Chief Justice (even though the treatment of the CJ was attrocious and exposed a level of bias towards the CJ on the part of Mush)… That was all according to the constitution…
Barring the fact that the Musharaf role as president itself may be uncostitutional and thus has no authority in suspending the CJ, the following can be acertained…
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We should start out with one thing in mind… That the charges against the Chief Justice were immaterial… They were apparently presented to the Musharaf by Lawyer who had some kind of Grudge against the CJ… Charges included one that claimed that the Chief Justice insisted on driving a Mercedes, and another that accused him useing his position to elevate his son to some high postion… In a country like Pakistan, corruption of this nature is routine, from top to bottom, and it hypocritical to say the least for anyone to use this to malign the CJ.
This was an expression of hostility towards the CJ from the govt, not a valid case. -
There is a legal loop hole if you will in this case, which stipulates that the CJ has to oversee the SJC… There are other issues aswell…
Accordingly, Aitazaz Ahsan contends that:
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That the reference filed against the CJP is mala fide (‘in bad faith’)
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That Article 209 of the Constitution does not allow the president to file a reference against a sitting CJP, nor does it permit a Supreme Judicial Council (SJC) to inquire into his conduct.
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It was unlawful to restrict the CJP from performing his functions by sending him on forced leave and appointing another judge in his place as acting CJP.
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That an in camera (secret) trial was not only a violation of the Constitution and the fundamental rights of the CJP but it also amounted to a travesty of justice and fair play. The CJP contends that a trial in camera can take place only with the consent of the petitioner.
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That the SJC has no validity without a permanent CJP and that an acting CJP cannot preside over the council meeting. (This law has been established in The Al-Jehad Trust case).
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That the appointment of an Acting CJP was illegal.
That the SJC must, at all times, be presided over by the CJP and that he was not only the lawful CJP but was also ‘the integral and unavoidable’ chairman of the SJC
That no person, harbouring a bias against the CJP (or against whom the CJP had sufficient allegations of bias), could not become a member of a SJC.
Now, There is obviously a problem with the law itself… As far as I know, there is no provision regarding how to go about proceedings if the CJ himself is the one on trial.
Logicaly a new Chief Justice would be needed. But, again, there is the spin… CJ can only be fired if he is found guilty but he has to be the Chief Justice to preside over his own case.
The CJ and Barrister Ahsan do contend and rightly so that the CJ couldnt possibly get a fair hearing because 3 of the Judges that were to comprise the SJC had a bias towards the CJ.
Now the role of the Supreme Court itself comes into the Picture…
The Supreme Courts role is as the final arbiter of legal and constitutional disputes… Meaning its role is to interpret laws and their application…
Considering the nature of this trial, unprecednted in Pak history, the provision under which the CJ was brought to trial, is up for legal debate…
Because of the inherent contradiction in the law, its within the SC’s mandate to interpret the law in relation to the situation…
The SC, having the mandate as the final arbiter of legal and constitutional disputes, found that the SJC did not have the authority to try the CJ.
I think this Lawyer from Islamabad sums it up best…
Many of these legal issues are cogently analyzed in an opinion submitted by a lawyer based in Islamabad, referred to as a Rhodes Scholar with an LLM from Harvard Law School, who states: “Neither Article 209 or any other article of the Constitution authorizes 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.”[24] The opinion notes that the suspension of the Chief Justice, apart from being a disgrace for the manner in which it was accomplished and for being questionable under law, has long-term implications on the already distressed credibility of Pakistan’s system of justice.
The Islamabad lawyer further argues that the Chief Justice is not a petty state official who can be suspended pending inquiry and claimed that if a judge under inquiry were required to be temporarily suspended by implication, the Constitution should have explicitly provided for such suspension. The lawyer asserts: “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.”[25]
The author also posits a further legal issue raised by the appointment of an Acting Chief Justice. Article 180 of the Constitution provides that the President can appoint an Acting Chief Justice when the office is vacant or the incumbent is absent or unable to perform the functions of the office due to any other cause. The circumstances outlined in the Article are stated as not being found in the manner in which Chief Justice Chaudhry was relieved from office. The appointment of Justice Javed Iqbal as the Acting Chief Justice, who thus joined the Council investigating the alleged misconduct of the Chief Justice also creates a conflict of interest.
A petition challenging the jurisdiction of the newly constituted Council was filed in the Supreme Court on grounds, inter alia, that an acting Chief Justice cannot sit in the Council. The petition also asserted that the President has no constitutional power to remove the Chief Justice. Additionally, absent the legal authority of the Council to investigate the Chief Justice, the petition claimed that only the full bench of the Supreme Court is the competent authority to adjudicate the issue of any misconduct of the Chief Justice.[26]
Technicaly, from what I understand, the SC verdict, though a long shot and still open to debate, was still within its mandate as according to the constitution.
Hence, the SC’s decision was, that given the unprecedented situation, the current Article 209 does not apply and hence it had the jurisdiction over the matter… Hence, it found the CJ not guilty and hence he was exonerated…
- Your right, this is a problem… This is an issue that exposes deeper structural problems within the Pak Judicial system and the system of checks and balances.
Now the question arrises who checks the SC? As from my understanding, its the role of the Parlliament to amend the Constitution in colaboration with the President… If the President wants to rid himself of the CJ, he will have to amend the constitution so that the legal loop hole that exists within the constitution which allowed the CJ to not be tried under the SJC.
But under the existing Article, the SC in my understanding did the right thing, because…
a) The Chief Justice couldnt possibly have gotten a fair trial under the SJC…
b) Article 209 does not apply in the same way as it would in a case that didnt involve the CJ.
c) Because the role of SC is to be the final arbiter of legal and constitutional disputes, AND this BEING a constitutional dispute, brought it within the mandate of the Supreme Court…
d) The Supreme Court rightly or wrongly, decided that under the circumstance, and according to their interpretation, the CJ could not be tried under the SJC…
e) The SC decided that the CJ thus could only be tried under the SC itself. I personally dont agree with this either, but its not illegal.
d) The SC found that the cases against the CJ did not warrant a dismisal. And thus the Judge was exonerated…
Again, this exposes far deeper problems with Pak JUDICIAL system and the process of checks and balances..
Both sides are in the right as per the constitution…
Here is why I blame Mush… I dont question the legality of his dismisal of the CJ… It was in accordance with the Constitution. The problem is with the hypocracy of the move…
Mush Govt is FILLED with corrupt individuals, who are far worse the the Chief Justice and yet they are not brought to trial?
Mush’s record on corruption is full of holes… Why is it that NAB never went after serving Military high ups even though it had cases against them?
I can go on..
Why is the CJ brought up for miner corruption charges, when Benazir having far more serious cases against her is let off? Why was there no National reconciliation order to cover the CJ?
The PCO was ofcourse completely illegal.. Musharaf at the time and even now, is not the President as he was not cleared by the SC. Hence he had no authority as a president to call anything. As COAS, he acted unconstitutionaly to depose a functional Supreme court…
Because the Supreme Court never validated his nomination, Musharaf is not president… All pronouncements made as president after PCO are null and void…
The Courrent chamch supreme court has no authoirty as they were appointed by Musharaf, who hasnt the authoirty… Also, the Supreme Courty declared the PCO illegal. And that resolution is binding because again, Musharaf is not president and has no authority to dismiss the SC.
Everything Mush has done has been ilegal and he is not the rightful president.
What Musharaf should have done is go to the Parliament and amend the constitution so as to cover the legal loop hole and then bring a new case against the CJ.. But for some reason, he didnt do that…
In the end, the issue remains that the PCO was illegal, Mush had the legal standing but not the moral standing to bring the CJ to trial, and all parties were right as per the constitution…
If Pakistan is to be democracy, then a more through examination of exisisting laws needs to be made and the process of Checks and Balances needs to be more accountable..
But it has to be done under a democratically elected govt, and with all those aboard who are party to it including the rightful CJ…
Anyways, that my two cents.. I appreciate the articles you cited… You argument made a lot more sense then that of the other Mush Supporters… I admit I didnt have all the details of the case, but having researched the counter argument, I dont think the Supreme Court was wrong..
