L A W  &  J U S T I C E

Pakistan: Judiciary under Fire
Joginder Singh Toor

THE removal of the Chief Justice of the Supreme Court of Pakistan by Gen. Parvez Musharraf in a summary fashion is too chilling even for a country governed by a military ruler. This court is ostensibly the custodian of country’s legal system, a supposed check on executive's arbitrariness, a touchstone of countries' legislative output and some hope for the hapless people seeking justice in a country where arbitrariness’ is too common.

On March 9, Pakistan's President General Pervez Musharraf summoned Chief Justice Iftikhar Muhammad Chaudhry to his office and effectively dismissed him for alleged "misuse of office." The government subsequently declared the chief justice to be "non-functional" and has held him incommunicado at his official residence. It appears Justice Chaudhry has refused to resign.

Meanwhile, the Chief Justice, Lahore and Sindh high courts were flown in special planes and a Supreme Judicial Council constituted under the chairmanship of a chosen Supreme Court Judge Iqbal Javed ignoring the next senior most puisne judge Justice Rana Bhagwan Dass. Three out of five members of the council are reportedly facing corruption charges and one out of them is personally inimical to the Chief Justice. The acting chief justice now heading the Supreme Judicial Council has personal interest in the removal of Chief Justice Chowdhary because he gets the chance to become the Chief Justice only if he is ousted as in normal course he will hold the post up to 2013 by which time Justice Iqbal would have retired.

The haste in appointment of the acting chief justice, the formation of the Supreme Judicial Council, his virtual arrest and the clumsiness of the whole affair has set the nation on a warpath. The agitated lawyers throughout Pakistan are demonstrating unmindful of injuries. Media equally is vocal, has suffered black out, and repression. People are unequivocally opposing the move in one voice. They want to know the background, charges against the Chief Justice Chaudhry, which so far are held in wrap. These are not likely to be revealed in view of proceedings being held in camera.

Among the five Chief Justices, Justice Iftikhar Chaudhry is the fifth Chief Justice to be changed during Gen. Musharraf’s tenure and is the second chief justice to be forced out after Justice Saeed-uz-Zaman Siddiqui. Was there something that could play a spoils sport in the re-election of Gen. Musharraf or did his judicial activism in the public interest made him a sore in the administration's eye?

The sale of Pakistan Steel Mills (PSM) to a private consortium, in June, 2006, for Rs.21.68 billion, suffered the verdict of a Supreme Court Bench headed by Chief Justice Iftikhar Chowdhary, holding that Cabinet Committee on privatisation had grossly violated the law on privatization. It hurt the government more as the Cabinet Committee was headed by the Prime Minister, a close confident of the general. In an other matter the Supreme Court stopped the NWFP government from enforcing the Hasba Bill which was passed by NWFP Assembly in July, 2005. Chief Justice Iftikhar's reprimand to the inspector general of Punjab police, for his inability to control the crime irked the government still further. Adding insult to injury was the Supreme Court order cancelling the allotment of thousands of acres in Gawadur seat port to politicians, judges, Generals and officers of armed forces.

Human rights are least care for in Pakistan as reports from Amnesty International and Human Rights Organization repeatedly state. Chief Justice Iftikhar constituted a special cell in the Court for the protection of human rights. It was disturbing when the court ordered the production of abducted or missing persons by the police.

The Supreme Court validated the 1999 coup by gen. Musharraf by invoking "the doctrine of necessity" after taking fresh oath as dictated, except the then Chief Justice and some other judges refusing to take such oath, who had to quit office. The Supreme Courts face saving effort to keep to itself the power to review the emergency powers of the general and giving him dead line for holding fresh elections, did not ameliorate the independence of judiciary virtually surrendered by taking oath of loyalty to a head of the State seizing power by extra-constitutional means.

The new constitution, crafted by the persons seizing power, to suit their own design, like the one now governing Pakistan, giving unbridled powers to the President in the formation of the Supreme Judicial Council, and exercising authority not vested in him or even in the Supreme Judicial Council in ordering the suspension or virtual removal or withdrawal of judicial work before the charges are even prima-facie judged much less proved, prove beyond doubt the erosion of supreme institutions, in the country including the judiciary beyond retrieve.

The Constituent Assembly of India, perceived the danger while finalising the draft of the provisions in the constitution relating to the judiciary, that a prejudiced, biased, obsessed, or arbitrary executive might try to tilt the balance of the three wings of the State by resorting to arbitrary removal of the judges of the High Courts or of the Supreme Court and in order to save the balance and separation of powers provided, that the head of the State shall not be able to remove a judge unless an address by a two third majority of the members of the joint house of Parliament is passed on the recommendation of the enquiry committee, to be constituted by the Speaker on a petition signed by at least 100 members of Lower House or at least 50 members of the Upper House. The Judges Enquiry Act envisages a procedure for impeachment although found to be cumbersome but transparent and open.

[ jogindersingh_toor@yahoo.com ]

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