ICJ concludes mission to assess developments related to reference against Chief Justice Chaudhry

The ICJ today concluded its mission to Pakistan to examine events and developments in Chaudhry case.

The aim of the mission was to know more about what happened since the President of Pakistan General Pervez Musharraf directed the Supreme Judicial Council (SJC) of Pakistan to consider allegations of misconduct against Chief Justice Iftikhar Mohammad Chaudhry on 9 March 2007.

Dato’ Param Cumaraswamy, former Vice-President of the ICJ and former United Nations Special Rapporteur on the Independence of Judges and Lawyers, represented the ICJ on this Mission. During the seven days, the Mission visited Karachi, Islamabad, Peshawar and Lahore and met the Chief Justice, retired judges, office-bearers and members of Bar Associations and the Minister of Information and Broadcasting, the Minister of Law, Justice and Human Rights and the Secretary of Law.

The Mission also met the lawyers acting for the Chief Justice, some lawyers acting for the Government, including Mr Sharifuddin Pirzada, civil society representatives and journalists.

On 24 April, the Mission observed the Supreme Court proceedings related to the Petition of the Chief Justice challenging the authority of the SJC on numerous issues.

Below are the preliminary observations of Dato’ Param Cumaraswamy, presented at a press conference in Islamabad today. The ICJ will prepare and release a report setting out in more detail its considered findings and conclusions.

Preliminary observations of Dato’ Param Cumaraswamy, ICJ Mission to Pakistan.

There have been well-known and well-documented instances of executive interference in the independence of the judiciary and judicial subservience in Pakistan. However, the events of 9 March 2007 at Army House when the President of Pakistan Pervez Musharraf, in his army uniform, met the Chief Justice and sought his resignation, who then refused to resign, was virtually unprecedented in the legal annals of the world. The Mission was told that no Chief Justice has ever refused to resign when called upon to do so by the Executive.

The Mission learnt that the Chief Justice was held in Army House for nearly five hours, virtually incommunicado save for the presence of a few other army generals. The Mission also learnt that during those five hours, in the absence of the next senior most judge, Justice Rana Bhagwandas, who was away overseas, and with undue haste, the next senior most judge, Justice Javed Iqbal, was sworn in as Acting Chief Justice (ACJ). To facilitate this swearing in and the subsequent SJC meeting, the Mission learnt that the Chief Justices of Sindh and Punjab were specially flown to Islamabad.

Acting again with undue haste, on that same evening, the SJC, a body created under Article 209 of the Constitution, was convened. This Council was presided by the newly sworn in ACJ. In a written Notice, the SJC indicated it had received a Reference by the President under Article 209 of the Constitution against the Chief Justice, to answer the question of whether the Chief Justice was guilty of misconduct. In the same Notice, the SJC invited the Chief Justice to appear before it on 13 March. The SJC also “ordered” the Chief Justice not to perform functions as Judge of the Supreme Court and/or the Chief Justice of Pakistan.

On 15 March, after the Reference was sent to the SJC, the President, purportedly acting under Article 2(1) of the Judges (Compulsory) Order, 1970, ordered that the Chief Justice “shall be on compulsory leave with effect from March 9, 2007”.

When the Chief Justice left the Army House, the Mission learnt that his entire protocol was immediately withdrawn, even to the extent of removing the flag from his car. The Mission learnt that he was not allowed to go back to his office at the Supreme Court. Instead, the police escorted him to his residence. The Mission learnt that when the Chief Justice reached his residence, 18 intelligence agents were reportedly inside the house, his housekeepers had been sent home and his phone and cable lines were disconnected. His cars were also fork lifted and taken away.

The allegations contained in the Reference were substantially similar to those that had been circulated around the country in a “flying letter” since 16 February 2007, in an apparent attempt to vilify the Chief Justice. It would appear that the Executive reacted increasingly to the judicial activism of the Chief Justice. One particular case brought to the attention of the Mission was the Pakistan Steel Mills case, where the Supreme Court struck down a privatization deal with the Government. This was followed by several cases in which the Supreme Court invoked suo moto jurisdiction (i.e., on its own motion or initiative) to deal with a significant number of complaints of enforced disappearances – cases in which the Chief Justice called upon the police/security agencies to answer. These actions by the Chief Justice seemed to have irked agencies of the Executive.

The manner in which the Chief Justice was treated in those five hours infuriated the legal community and the public in general, which resulted in very large demonstrations. The legal profession made it clear to the Mission that they of course accepted that judges must be accountable and subject to disciplinary proceedings for any misconduct. However, the legal profession found the manner in which the Chief Justice was treated to be unacceptable and an attack on the independence of the judiciary. On 13 March, the Chief Justice of Pakistan was manhandled by the police, to the extent that the police reportedly tore his coat, shoved his wife aside, pulled his hair and tried to force him into a police car. The Supreme Court took suo moto notice of the incident and has called into contempt the Inspector General of Police and the Chief Commissioner of Islamabad, among others. Nevertheless, the question put to the Mission was: If the Chief Justice could be treated in this manner, what justice could members of the public expect from the administration?

The Chief Justice, through his lawyers, has filed a Petition before the Supreme Court challenging the composition and competence of the SJC to inquire into his alleged misconduct. He has sought the recusal (i.e, disqualification) of three of the SJC’s members and has sought an order from the Supreme Court to stay the proceedings of the SJC. The Petition before the Supreme Court was last called for hearing on 24 April. Together with the Chief Justice’s Petition, there are about 10 other Petitions by interested parties on the same issue.

At the last hearing before the Supreme Court on 24 April, the presiding Judge, Justice Sardar Raza, recused (disqualified) himself, as he was one of the five original members of the SJC panel on 9 March who issued the Notice restraining the Chief Justice from exercising his judicial functions. The lawyers for the Chief Justice and the Government had no objection to Justice Sardar Raza continuing. Nevertheless, the Judge did recuse himself, which the Mission considers to have been the correct decision.

The Supreme Court has yet to set a date for a further hearing. The lawyers for the Chief Justice have requested that a larger Bench of the Supreme Court hear the Petition. In the meantime, the SJC on the same day deliberated on the Reference and adjourned proceedings to 2 and 3 May. There are, therefore, currently two parallel proceedings continuing on the same matter. The Mission does not wish to comment on the constitutional issues relating to the Reference, as they are currently before the Supreme Court.

The Mission learnt that the show of support by the legal profession of Pakistan in defence of judicial independence is unprecedented and involves almost all the legal profession. The opposition political parties have also joined the legal profession in solidarity. Some quarters in the Government view this as the legal profession politicizing the issue. The latest demonstrations on 24 April, in all the provinces, indicate that other sections of society are joining in the show of solidarity.

The Mission considers that the legal profession of Pakistan has rightly sought to peacefully demonstrate its belief in and support for judicial independence in the country. Judicial independence and the separation of powers are fundamental principles of the rule of law and of a democracy and should always be defended when under threat. The lawyers are also exercising their legitimate right to freedom of expression and assembly.

Several lawyers, particularly in Lahore, informed the Mission of the use of force by the police in dealing with peaceful demonstrators. Lawyers including office-bearers of the Lahore High Court Bar Association informed the Mission that many of them were arrested and detained in custody for several hours and some were held overnight. A few were reportedly tortured or ill-treated. On 17 March during the All Pakistan Lawyers’ Convention held at the Lahore High Court premises, the police used teargas to disperse the crowd. Over 150 lawyers and about seven journalists covering the event were injured.

The Government, regrettably, is now mobilizing members of the public to demonstrate on the street in support of the President, to counter the wide support shown for the Chief Justice. The Mission considers that such a public show of strength by the Government is an inappropriate and ineffective way to resolve the current crisis. This was seen clearly in the demonstrations of 24 April.

In the last few years, the media, both print and electronic, have enjoyed, and continue to enjoy, greater freedom in Pakistan. The Mission learnt from journalists that as a result of recent events, there have been pressures exerted on them – some subtle, such as the reduction of Government advertisements, and some overt, such as letters and phone calls telling them to report in a particular manner. Most recently, the private TV channel, Aaj, has been called to show cause why legal action should not be taken to cancel its license. The license was issued by the licensing authority, the Pakistan Electronic Media Regulatory Authority (PEMRA), which reportedly is not independent of the Government. The Mission reiterates the importance of maintaining the right to freedom of expression and of the media.

In conclusion, the Mission considers that the present judicial crisis, if not resolved soon, could deteriorate and cause irreversible damage to constitutional order in Pakistan. The Mission urges the Government to address the underlying causes of this crisis and to restore a fundamental democratic principle that is pivotal for the rule of law in Pakistan – the independence of the judiciary.

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