ISLAMABAD, March 9: In a highly dramatic move that has the potential to change the course of judicial activism in the country, President General Pervez Musharraf on Friday virtually suspended the Chief Justice of Pakistan, Justice Iftikhar Mohammad Chaudhry, and appointed the available senior-most judge, Justice Javed Iqbal, as the acting Chief Justice of the Supreme Court.
The move to make Justice Iftikhar Chaudhry ‘non functional’ was immediately followed by yet another decision by the president to send a reference under Article 209 of the Constitution to the Supreme Judicial Council to investigate allegations of misconduct against him.
Notwithstanding the intense debate that soon started within the legal fraternity on the question of the president’s authority to make the Supreme Court chief justice ‘non-functional’, it was being said that if the newly constituted judicial council found him guilty of the charges, he would be removed from office.
Although the country’s judicial history has been a chequered one all along, and judges have been removed by various methods, this is the first time that the chief justice of Pakistan has been made, in the words of the official handout, ‘non-functional’ and his case has been sent to the Supreme Judicial Council for action.
The president’s orders came in the afternoon, and within minutes took the country by storm. Many in the legal fraternity were shocked by the way the country’s top adjudicator had been treated. Among them was the President of the Supreme Court Bar Association, Munir A. Malik, who described it as a ‘blatant attack on the independence of the judiciary’, and former chief justice Saeeduzzaman Siddiqui.
Still, a few thought it was bound to happen as, according to them, the chief justice’s style of judicial activism, and his personal conduct on some issues, was a bit too unsettling for the government. The most vocal defender of the move was the minister of state for information, who said the president had no choice but to take action after serious allegations of misconduct and misuse of authority had been levelled against the chief justice.
But as the debate continued to rage, with private televisions having a field day in covering the story, most legal and constitutional experts were of the view that the move was likely to create a new crisis rather than resolving it.
As speculations started to grip bar rooms and political circles about the fate of the judiciary, and the impact of the move on other key issues, the acting chief justice was sworn in by a brother judge, Justice Abdul Hameed Dogar, in an ‘uncharacteristically simple ceremony’. The traditional fanfare that has been the highlight of such ceremonies was missing and instead of the main hall of the Supreme Court, a small room on the third floor of the judges’ block was chosen for the occasion.
The media persons and the accompanying cameras clearly outnumbered the officers of the court at the ceremony as most of the brother judges (as they are mostly referred to by their colleagues) were conspicuous by their absence. So was the Attorney General Makhdoom Ali Khan, even though he was seen in precincts of the court house, and also the veteran lawyer and Prime Minister's adviser, Sharifuddin Pirzada.
Along with a handful of lawyers, Justice Muhammad Nawaz Abbasi witnessed the ceremony as Justice Hameed Dogar administered oath from the acting chief justice. Later on it was explained to the media that the senior-most judge after chief justice was Justice Bhagwandas, but since he was away from the country, so Justice Javed Iqbal being the second in line was made the acting head of the apex court.
Lawyers and other staff at the Supreme Court said the day started with the usual routine, with even the Chief Justice, Iftikhar Chaudhry handing cases in the courtroom. However, events started to take a dramatic turn around noon when the country's chief adjudicator was summoned to the President's Camp Office, located in the annexe of the army chief's official residence in Rawalpindi. There in the presence of Prime Minister Shaukat Aziz, President Musharraf informed him of the allegations that had been taking rounds in the country, particularly his alleged misconduct in handling matters within and outside the court. According to an official handout, when confronted, the chief justice had no answer.
The President also informed the chief justice that he was being made "non-functional", an acting chief justice was being appointed, and a reference against him was being sent to the Supreme Judicial Council, comprising senior judges of the Supreme Court and the chief justices of the four provinces.
Chief Justice Iftikhar Chaudhry's reaction was not known as since his "suspension" or being made "non-functional" he had remained incommunicado. After his meeting with President Musharraf, he remained inside the President camp office for a few hours, and was later prevented from going to the Supreme Court by the security officials. Informed sources told Dawn that when late in the afternoon Justice Iftikhar Chaudhry was returning from the President’s camp office he tried to go to the apex court, but a strong police posse chased his car which was blocked near Serena hotel. In the meantime senior superintendent of police Tariq Yasin rushed to the spot, and escorted the chief justice to his official residence. The security outside his residence had already been increased, and it was not possible to even contact him on telephone.
By this time security had also been stepped up outside the Supreme Court building where only lawyers and journalists were being allowed after proving their identity. As the oath taking ceremony ended, a beaming acting chief justice hugged his brother judge, Justice Dogar who had administered the oath, and started to walk towards his chamber. He was repeatedly asked for comments by a battery of reporters, but understandably he constantly parried the questions. "It's premature to say anything right now," he observed on being asked about the likely outcome of the reference sent against the chief justice.
Soon after the oath taking ceremony, the Supreme Judicial Council went into a session and decided to call Chief Justice Iftikhar Muhammad Chaudhry on March 13 to answer the allegations of misconduct levelled against him. Presided over by Acting Chief Justice Javed Iqbal, the SJC also ordered the chief justice not to perform functions as judge of the Supreme Court or as the chief justice till the reference was decided by the council.
The SJC meeting was also attended by apex court judges namely Justice Abdul Hameed Dogar and Justice Sardar Muhammad Raza Khan, Chief Justice of Lahore High Court Iftikhar Hussain Chaudhry and Chief Justice Sindh High Court Sabihuddin Ahmad, who had flown into Islamabad earlier in the day.
Although the events during the day had moved at a fast pace, the action against the chief justice was not entirely unexpected. Stories about favours given to his son had already been taking rounds, and his desire to remain in the news through his court decision was becoming a source of annoyance for some in the government. But it was most his judicial activism, which on the one hand had made him popular in the eyes of ordinary people seeking justice but on the other had also irked a few in the establishment. Some of his decisions had started to appear like an open challenge to the government, and in recent weeks cases of missing persons had been a cause of embarrassment for a few in high places.
But members of the legal fraternity point out that the turning point came with the appearance of a so-called "open letter" by a lawyer-cum-television personality, Naeem Bokhari in which Justice Iftikhar Chaudhry was accused of a series of doing favours and violating judicial norms and practices. He was accused by Mr Bokhari of running a "slaughter house" in the name of courtroom, and warned of a "rebellion" if he did not change his style and behaviour.
Since then it was widely believed in the legal and political circles that there was more to the "open letter" then a simple attempt by an officer of the court to challenge the highest adjudicator of the country. Whether the president's action was a direct result of this letter is not clear, but the minister of state for information. Tariq Azeem, while taking part in a discussion on a local television, said after the serious allegations levelled by Mr Naeem Bokhari it was not possible for the President to sit idle and not take any action.