It is well recognized legal maxim that justice should not only be done but seem to have been done, which now form part of the Code of Conduct (Article IV) as framed by the Supreme Court pursuant to Article 209 of the Constitution, 1973. The entire nation is witness to one of the most tragic incident of the history of judiciary in Pakistan that how justice was done in the case of the Chief Justice of Pakistan Mr. Iftikhar Muhammad Chaudhry.

On 09-3-2007, when a Reference under Article 209 of the Constitution was sent by the President involving the Chief Justice of Pakistan (CJP) to the Supreme Judicial Council (SCJ) at the same time a Notification was also issued under the signature of a retired Judge of Lahore High Court Mr. Mansoor Ahmed, who is Secretary, Law Justice and Human Rights Division, Government of Pakistan, claiming that the President has “restrained” Mr. Justice Iftikhar Muhammad Chaudhry “as he is unable to perform the functions of his office due to the facts narrated in a Reference…….”. The first question which immediately arises is whether under any provision of the Constitution, the President has any authority to restrain the CJP from performing his judicial and administrative functions. The answer is in negative. Justice (R) Mansoor Ahmad should have examined the relevant law and other provisions of the Constitution before signing and issuing said Notification. This was not an order issued by the Martial Law Administrator in absence of constitutional regime. Unfortunately, this act was also supported by the Federal Law Minister Mr. Wasi Zafar, who in his wisdom justified the act of restrain.

Upon the hue and cry raised by the Bar and other members of the civil society, the Government spokesmen including Law Minister took a unique stance and claimed that the CJP has not been restrained but he has been made “non functional”. Again there is no provision in the Constitution to declare any Judicial Officer of the Superior Courts to make him “non functional.” Subsequently, it was also claimed that the Supreme Judicial Council (SJC) has restrained CJP from performing judicial and administrative acts. However, this order was not made public perhaps due to the fact that the SJC has declared proceedings of reference against CJP “in camera”. Besides, it is highly questionable whether SJC had such powers to restrain a Judge of the High Court or Supreme Court from performing his constitutional duties and obligations. It is a rule of proprietary that such judge, who is facing Reference before SJC declines to perform his judicial functions. But despite that the said judge still enjoys access to his Chamber, staff, library etc. etc. which was not done in the case of CJP Iftikhar Muhammad Chaudhry, who has been deprived of all such facilities for which he was entitled in law. It appears that Pakistan Government has borrowed such tactics from its Military counter part at Fiji namely Mr. Josaia Voreque Frank, the Commander of the Republic of Fiji Military Forces and Acting President of Fiji who on 03-1-2007 sent Daniel Fatiaki, the Chief Justice of Fiji, on forced leave.

To fortify the above view, I would like to refer a decision of the Supreme Court of India wherein it was held that:-

To fortify the above view, I would like to refer the decision of Supreme Court of India, wherein it was held that no Court can restrain a Judge of a Superior Court from exercising judicial functions. (See Sub Committee of Judicial Accountability v Union of India AIR 1992 SC-320).

The next blunder committed by the Federal Government was on 15-3-2007, when another Notification no.F-1(ii)/2005-A.11 was issued through which the CJP was sent on “compulsory leave” w.e.f. 09-3-2007, till submission of report by the SJC and till the President’s order thereon by invoking Article 2(i) of the Judges (Compulsory Leave) Order, 1970. This is a law which has become redundant on the statutes book. The said law clearly violates the concept of independence of the Judiciary, as it can be conveniently used by the President whenever he thinks to remove a judge temporarily from a Bench hearing a case against the Government. It was on 19-12-1970, when President’s Order XXVII of 1970, namely Judges (Compulsory Leave) Order, 1970 (PLD 1971 CS-59) was promulgated. At that time, there were two References pending before the SJC in respect of two Judges of Lahore High Court. At the same time there was un-rest in the East Pakistan and subsequent to its dismemberment the SJC became non-operational due to the non availability of the Chief Justice of Dacca High Court, therefore, General Yahya Khan, promulgated President’s Order 27 by invoking Article 8 of the Provisional Constitution Order, 1969. Unfortunately, this law was given protection by a democratic government through Validation of Laws Act, 1975 (PLD 1975 CS 252).

It is needless to remind that on 25th March 1969, Field Marshal Muhammad Ayub Khan, handed over all powers to General Agha Mohammad Yahya Khan, who later on abrogated the Constitution, 1962 and imposed Provisional Constitution Order (PCO) thus assuming all the powers of the President and Chief Martial Law Administrator. It was Article 8 of the PCO which authorized the President to make constitutional provisions as he may deem fit for administration of the affairs of the State (PLD 1969 CS 41). Subsequently, through P.O.14 of 1970 (PLD 1970 CS 366) the Supreme Judicial Council (Composition) Order 1970, was promulgated. It was this regime which was declared “usurper” by the Supreme Court of Pakistan in the celebrated case of Miss Asma Jilani (PLD1972 SC 139). Now, the Compulsory Leave Order, 1970 is the law made by an usurper Army Chief and followed by present Army Chief for no lawful reason. It would be relevant to quote most important observation of the Chief Justice Hamoodur Rehman, in the case of Asma Jilani (supra) that General Yahya Khan had no authority to pass any legislation taking away the powers of the Courts under the Provisional Constitutional Order. It was further observed that the Marshal Law introduced by General Yahya Khan was illegal and therefore, he was not competent to validly pass such laws which was in access to the implied authority, if any, given to him by the letter of Field Marshal Mohammad Ayub Khan dated 24-3-1969. In my humble view, this law has neither any moral nor legal sanctity and its application has infringed the concept of independence of judiciary.

Examination of clause (1) of the Article 2 of Presidential Order XXVII of 1970 provides that the President, by an order in writing, may sent any Judge of the Supreme Court or the High Court to proceed on leave for a period as may be specified in the said order. Vide Clause (2) of Article-2, a Supreme Court Judge was made entitle to half allowances and in case of a Judge of High Court to half salary. It is further provided that in case SJC report that such judge is not incapable of duties or has not been found guilty of “misconduct” the whole period of leave shall be treated as actual service as a Judge. However, the level of embarrassment and humiliation to be suffered by the Respondent Judge in such circumstances could not be ascertained. At the same time, the litigants are also likely to suffer due to the absence of the respondent Judge. The P.O.XVII of 1970 is an act of a military dictator which was enacted to meet an emergency arose on the dismemberment of East Pakistan. Subsequently, in 1973 the Constitution was promulgated and thereafter in 2005, the “SJC Procedure of Inquiry, 2005” was also framed wherein PO-XXVII of 1970 has not been given any protection thus, the Judges (Compulsory Leave) Order has lost its legal sanctity and could not be enforced by the doctrine of implied repeal. It is, perhaps, for this reason, that this Law was never invoked after 1973.

Some section of lawyers are of the view that Article 209 is not meant for CJP who is the head of SJC while provisions of replacement has been incorporated in the said Article in respect of Senior Judges of Supreme Court and two Chief Justices of Provinces, there is no such provisions of alternation in case of non-availability of CJP. Be that as it may, Article 209, is not exhaustive and requires serious consideration by a larger bench of the Supreme Court of Pakistan because all such questions could not be decided by SJC which is an Inquiry Commission. All these questions and the decision of SJC will be echoed for quite long duration in the corridors of the Bar and Bench and may affect the future course of justice delivery system in Pakistan.

The Supreme Court of Pakistan has dealt with such situation in past, particularly in the case of Al-Jihad Trust (PLD 1996 SC-324) wherein provision of Article 203(C) of Constitution was considered which provides transfer of a Judge of High Court to Federal Shariat Court without his consent. It was declared violative of Article 209(7) on the reasoning that the former Article was incorporated by the Chief Martial Law Administrator and the later Article 209 was enacted by the framers of the Constitution, and that the latter was to prevail whereafter such transfer was declared to be void. This principle of interpretation is fully attracted in the case of P.O.27 of 1970 and the Notification dated 15-3-2007 could be treated as void ab-initio.

The entire scheme of the Constitution is silent on the point that if SJC gives its report absolving the judge from the alleged charges of misconduct than how such judge could vindicate his honour and how the confidence, which the citizens have lost in the said judge as a result of Reference, could be restored ? In my humble view, the negative report of SJC should be treated as a “show cause” against the referring Authority who should step down from his office as it would be sufficient proof of malafide on the part of President.

After the year 1970 the concept of independence of judiciary has undergone revolutionary changes. This concept was reviewed and enlarged from time to time by the Supreme Court in several cases beginning from the case of Sharaf Faridi (PLD 1989 Karachi 404 and PLD 1994 SC 105). It was further extended in the case of Ghulam Mustafa Khar (PLD 1989 SC-26), Azizullah Memon (PLD 1993 SC 341) Al-Jihad case (supra) and recently in the case of Malik Asad Ali (PLD 1998 SC 161) where a bench of Supreme Court comprising 10 Judges, held, inter alia that right of access of impartial and independent courts/tribunals is a Fundamental Right of every citizen. The Supreme Court went upto the extent of holding that any deviation from the method of appointment prescribed under the Constitution in respect of CJP shake the public confidence in the institution of judiciary and thus such deviation violates the Fundamental Rights of citizens guaranteed under Articles 9 and 25 of the Constitution, 1973 who have free, fair and equal access to independent courts. Thus, when seen in this back drop, the question of removal or sending CJP on forced leave could be seen as violation of the Fundamental Rights of all citizens of Pakistan guaranteed under Articles 4, 9 & 25 of the Constitution, 1973.

There is no moral or legal justification available with the Government for restraining CJP from performing judicial and administrative works and at the same time to send him on forced leave. Such acts amount to imposing sentence before holding of trial. The CJP being head of one of the most important institution which forms part of trichotomy which is essence of our Constitution, could not be treated in a manner by any other institution including Chief Executive of the country. One important organ of Government has grossly encroached upon jurisdiction of another important organ of the state, which in my humble view amounts to misconduct on the part of the Chief Executive. It should be undone without further delay otherwise the confidence of the citizens which were shaken in the year 1997 as reported in the case of Malik Asad Ali (supra) will be totally destroyed and the judiciary will be seen by the citizens as a rubber stamp in the hands of Chief Executive.

(Note: Author is a former Judge of Sindh High Court and is presently Member of the Pakistan Bar Council).