KARACHI, July 20: The Supreme Court seems to have relied on allegations of mala fides as evident from circumstances in setting aside the reference against Chief Justice Iftikhar Mohammad Chaudhry, though the rationale would be known in detailed reasoning.
“It has never been anybody’s case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication,” the 13-member SC bench observed in 10 to 3 order against the reference. The order apparently leaves intact the president’s power to make a direction or reference against the chief justice to the Supreme Judicial Council (SJC).
Simultaneously, the rather laconic order makes its clear that a reference made under Article 209 is open to challenge while it is pending before the Supreme Judicial Council. The stipulation contained in Article 211 that “proceedings before the council (SJC), its report to the president and the removal of a judge under Clause 6 of Article 209 shall not be called in question in any court” would be of no avail if the reference is ab initio void.
The judiciary has been saved from the mischief of the Judges (Compulsory Leave) Order of 1970, a little known piece of legislation lying buried in the statute book and resurrected only to provide legal cover to the CJ’s removal. The validity of the March 9 order of the president and the SJC’s order of the same date restraining the CJ have been set aside as illegal but the court has upheld its authority to pass a restraining order under Articles 184 (3) and 187. The order, however, is quiet on the argument that only the full court can pass an order for the CJ’s removal.
All other legal and constitutional issues raised are to be answered in due course through the detailed judgment/s to follow.
By declaring that the CJ shall be deemed to be holding his office and shall always be deemed to have been so holding the same, Justice Iftikhar in a way becomes the first judicially-appointed CJ set to serve a long tenure. He will thus be the most powerful top judicial officer the country has witnessed.
So far as the executive is concerned, it can ill afford an aggrieved CJ in an election year when so many crucial issues are likely to come up before courts. The campaign conducted by lawyers and the SC proceedings have raised high expectations in respect of rule of law, transparent governance and civil and political liberties.
