And justice is reborn

In the view of some legal commentators, the Pakistan Supreme Court has of late been in doldrums. But its recent judgment of July 20, 2007 — striking down the suspension of Chief Justice Iftikhar Mohammad Chaudhry — has greatly revived public confidence in the institution.

The facts leading to this historic judgment were the suspension of Chief Justice Chaudhry on March 9, 2007 on the ground of misuse of office, the subsequent filing of the reference also endorsed by the Supreme Judicial Commission on the same day and the order of March 15, 2007, requiring the chief justice to proceed on compulsory leave. The case was heard by the full court comprising 13 judges for 43 consecutive days.

By its 10-page short order pronounced on July 21, 2007, the court unanimously held that the writ petition filed by Chief Justice Chaudhry was maintainable. By a majority of 10:3, the reference dated March 9, 2007 was set aside. There was unanimity in declaring ultra vires the presidential order No. 27 of 1970 and consequently the said order of the president, dated March 15, 2007. Justice Javed Iqbal and Justice Rana Bhagwandas were appointed acting chief justices respectively on March 9 and March 22, 2007. The court unanimously declared these appointments to have been made without lawful authority. However, it held that this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and/or legal obligations by the acting chief justices of Pakistan during the period in question, and this declaration was made by applying the de facto doctrine. As a consequence the court ruled that Chief Justice Chaudhry of Pakistan “shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.” Chief Justice Chaudhry assumed charge of his office 134 days after his suspension by President Mushrraf on March 9, 2007.

One of the issues raised before the Supreme Court was accountability of the chief justice of Pakistan. The court observed that it had never been anybody’s case that the chief justice was not accountable and hence the issue did not require any adjudication.

There are some interesting features about the judgment. Justice Khalil-ur-Rehman Ramday observed that “it would be the endeavour of the court to let people and the country come out victorious because ‘individuals really mean nothing to us’”. Justice Ramday criticised an irresponsible statement by a “very responsible person” that the real tussle was between the judiciary and the armed forces. He said “all these institutions are very precious and very dear to us… Putting these institutions on a warpath is highly deplorable as we are not competing with each other but supplementing. The job of the judiciary is very different from other institutions. We are healers and soothers. People come to us with irritants and we remove their irritants by offering peace to the ones who suffered the most. The judiciary is not here to monitor or supervise but to supplement towards the national goals and objectives.”

A notable feature of the judgment is the expedition with which it was delivered. The case was heard on a day-to-day basis without interruption. This example needs to be emulated by our Supreme Court when hearing cases involving important constitutional issues. What happens is that between the hearing of the arguments on a Thursday and the resumption of arguments in the case on the next day, that being Tuesday, at least 100 miscellaneous applications would have been taken up for hearing, a vast majority of which should not engage the attention of the apex court. This leaves little time for reflection and deep study of the issues involved. There was a notable exception in the hearing of Cohello’s case where an 11-judge bench heard the case involving the doctrine of basic structure of the Constitution for six consecutive days.

A refreshing feature of the judgment is that the court did not shirk from taking on the military regime and ruled against a sitting military ruler and in effect buried the doctrine of necessity. Mention must be made of the heroic struggle of the Pakistani lawyers and in particular the commitment and the indomitable spirit of the lawyers who appeared for the ousted chief justice. The most remarkable feature is the universal public acclaim for the judgment which has renewed public confidence in Pakistan’s Supreme Court. Justice is rooted in confidence. The authority of the judiciary, the weakest branch of the state, lie in public confidence in its functioning. According to Bar Council President Munir A. Malik, “today we have seen the birth of a new Supreme Court that has shown great vision and courage to lay the foundation of an independent judiciary”. Roedad Khan, a former bureaucrat and campaigner for the restoration of the chief justice, was of the view that the Supreme Court had been reborn as a result of this verdict. General Musharraf was extremely ill-advised and made a fatal mistake in taking on the Supreme Court. It behoves him to accept the judgment and fully implement it.

All well wishers of Pakistan and persons who cherish an independent judiciary and the rule of law heartily welcome this path-breaking judgment. Three cheers, indeed, for Pakistan’s Supreme Court.

The writer is a former attorney general for India