Chief justice's removal: Pakistan
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Chief justices removal pakistan
Once again, the Supreme Court is on trial
By Mamoon Kazi
ABOUT ten years ago, Justice Sajjad Ali Shah, the then Chief Justice of Pakistan, was removed from his office by a ten-member bench of the Supreme Court, after he had instituted proceedings for contempt of court against Mr Nawaz Sharif, the then prime minister. The bench, while determining two petitions, concluded that Justice Shah was not the senior most judge of the Supreme Court at the time of his appointment as the Chief Justice of Pakistan. Therefore, the then government had no lawful authority to appoint him as such.
Once again, General Pervez Musharraf has sent a reference to the Supreme Judicial Council (SJC) under Article 209 of the Constitution, alleging that the present Chief Justice, Iftikhar Muhammad Chaudhry, is guilty of misconduct.
The action has invited protests from all over Pakistan as the reference is being seen as a wanton attack on independence of this country’s judiciary.
Before the learned judges constituting the SJC could embark upon an inquiry into the charges of misconduct, General Musharraf has suspended the Chief Justice and has made him non-functional. An Acting Chief Justice has been appointed when Justice Iftikhar Muhammad Chaudhry still continues to be the Chief Justice, albeit non-functional.
The prime minister as well as some of his cabinet ministers have claimed time and again that the action against the Chief Justice is legal and constitutional. The prime minister and the general, according to them, have not overstepped the parameters laid down by Art.209 of the Constitution.
People have a right to know how far this claim is justified. It is now well settled that structure of the state rests on three main pillars viz., legislature, executive and judiciary. Each one of them is required to act within the sphere allotted to it by the Constitution.
However, the judiciary is the guardian of the Constitution and it safeguards various rights of people given to them by the Constitution. Art.209 of the Constitution, around which the entire controversy revolves, no doubt, after the recent amendments introduced therein, empowers the president to make a reference to the SJC, if he is of the opinion that a judge of the Supreme Court or a High Court may have been guilty of misconduct. But in a case like this he can only direct the SJC to inquire into the matter.
The president is not empowered under Art. 209 or any other provision of the Constitution, either to suspend or remove a judge or make him non-functional, pending such inquiry. A judge can only be removed vide Art. 209(6) if the SJC after inquiring into the matter reports to the president that, in its opinion, such judge has been guilty of misconduct and that he should be removed from his office. Thus, removal of a judge from his office can only follow the inquiry; it cannot precede it.
What has irked all and sundry is not only the suspension of the Chief Justice pending inquiry by the SJC, but the manner in which the TV cameras showed the chief adjudicator of the country sitting before the general, while he was donning his military uniform. The people took it as an affront to the highest judicial office in the country.
The general was at pains to explain that his action was justified under the present circumstances but a vast majority was not prepared to accept the general’s implausible explanation. Therefore, soon thereafter more legal brains got busy and an old moth-eaten enactment of 1970 was invoked and after a few days an announcement was made that the Chief Justice had been sent on a forced leave.
The subsequent action taken against the Chief Justice is also unconstitutional, firstly, because no provision of a subordinate legislation can override a constitutional provision. The legislation invoked in this case to send the Chief Justice on forced leave is an extra constitutional enactment. As was pointed out earlier, Art. 209(6) clearly manifests that a judge can only be removed from his office, if, after holding an inquiry, the SJC recommends so. Sending a judge on a forced leave straight away again, amounts to his removal from office before a final verdict is given by the SJC, which is directly in conflict with the said constitutional provision.
Furthermore, the said enactment of 1970 is also opposed to the basic structure of the Constitution which postulates an independent judiciary. If such powers are allowed to be exercised by the president then judges who are not found pliant can easily be packed off summarily by the president.
The action is also flawed for the reason that the Supreme Court cannot function without the Chief Justice. Sending the Chief Justice on forced leave and the appointment of an Acting Chief Justice in his place is not permitted under the Constitution but a situation has been artificially created to justify appointment of an Acting Chief Justice.
This requires reference to Art. 180 as the Constitution is to be read as an organic whole. Art. 180 empowers the president to appoint an Acting Chief Justice if – (a) the office of the chief justice is vacant; (b) the Chief Justice is absent; or (c) the Chief Justice is unable to perform his functions due to any other cause.
The words “any other cause” ostensibly indicate that, whatever may be the circumstances, if the Chief Justice is unable to perform his functions, an Acting Chief Justice can be appointed.
However, principles guiding interpretation of statutes indicate that where general words follow the specific words, the former would be read ejusdem generis (the same kind or nature) with the specific words. It means that the general words have to take their meaning from the specific words. It therefore, follows that an Acting Chief Justice can only be appointed if the office of the Chief Justice is vacant, or the Chief Justice is absent or there is any other analogous reason.
Therefore, appointment of an Acting Chief Justice in the presence of the Chief Justice is clearly open to question. Constitution of the SJC afresh also needs to be examined through the prism of Art. 209 (2) of the Constitution. The said Article postulates that the SJC shall consist of – (a) the Chief Justice of Pakistan; (b) two next most senior judges of the Supreme Court; and (c) the two most senior Chief Justices of High Courts
Thus, Art. 209 does not contemplate appointment of an Acting Chief Justice to head the SJC. No doubt, for the purposes of the Constitution, the expressions, “Chief Justice” and “Acting Chief Justice”, according to Art. 260, are synonymous. But it would be possible only in case the circumstances enumerated in the Constitution for appointment of an Acting Chief Justice actually exist. If the Acting Chief Justice is appointed by creating an artificial situation which under the Constitution does not provide any justification for the same, Art. 260 of the Constitution cannot be invoked.
This, no doubt, raises a pertinent question: how can the Chief Justice head the SJC when the reference has been made against himself? An answer can be found only within Art. 209 itself.
Firstly, the Constitution fails to clearly specify whether a reference under Art. 209 can be made against the Chief Justice. Secondly, even if such a reference can be made, as the Chief Justice is also a judge of the Supreme Court and a reference under Art. 209 can be made against any judge of the superior court, the Constitution has a built-in system to deal with such a situation. Art. 209 provides that if the SJC is inquiring into the conduct of a judge who is a member of the SJC, then if he is a judge of the Supreme Court, the judge of the Supreme Court who is next in seniority below such judge shall act as a member of SJC in his place.
Therefore, although Justice Iftikhar Muhammad Chaudhry could continue to occupy the office of the Chief Justice, Justice Rana Bhagwandas, being next below him in seniority, could replace him as a member of the SJC. Although, the latter has already replaced Justice Iftikhar Chaudhry but not as an ordinary puisne judge of the Supreme Court. If one has to adhere to the spirit of the Constitution, could Rana Bhagwandas have replaced the former as an Acting Chief Justice?
It remains to be examined whether inquiry against the Chief Justice should be an open trial or it should be in camera.
First of all, rules framed by the SJC are not statutory rules which require to be strictly followed. In fact, Art. 209 does not provide for framing of any rules. However, the SJC has made these rules to regulate its own procedure for holding of an inquiry under the said provision. Since rule making authority is the SJC itself, it can deviate from any rule if it finds the same to be in the interest of justice.
The rule requiring trial in camera appears to have been framed for benefit of the judge himself whose case is going to be inquired into by the SJC. If the judge who is going to be tried has himself requested for an open trial, the government should be the last to oppose it in the interest of transparency of the trial. However, considering the huge crowd of people that gathers outside the Supreme Court on each date of hearing, it may become difficult for the SJC to allow an open trial. The discretion therefore, lies with the SJC which may be announcing its verdict in this regard on the next date of hearing.
Lastly, can a judge insist on hearing a case, even if a party appearing before him suspects him of being biased or pleasing his adversary? He can still hear the case if he so desires notwithstanding his bias, but age-old traditions require him to say “ Not before me.”
But the objection made by the Chief Justice in respect of his two colleagues raises a serious legal issue as the SJC is not to be constituted by an individual, but it has already been constituted under Art. 209 of the Constitution. The said Article does not contemplate a situation such as the present one. Therefore, the issue can either be determined by a court or by the SJC itself.
Epilogue: One of the federal ministers has categorically declared that the reference against the Chief Justice will not be withdrawn. In this case, the Supreme Court once more appears to be on trial. n
The writer is a former chief justice of Sindh High Court and a retired judge of the Supreme Court of Pakistan.
