Statement by the Asian Human Rights Commission

Statement by the Asian Human Rights Commission

PAKISTAN: A reference against three judges of the Supreme Court has been filed before the Supreme Judicial Council

The Lahore High Court Bar Association (LHCBA), the largest bar association of the country, in a general body meeting has passed a resolution against the conduct of three judges of the Supreme Court of Pakistan including the Chief Justice, Iftekhar Muhammad Chaudhry. The resolution has demanded that a reference be filed against them before the Supreme Judicial Council.

The reference has been filed through its president, Mr. Abid Saqi which includes the following allegations against the judges which constitutes misconduct on their part in terms of Article 209 of the Constitution of the Islamic Republic of Pakistan. The reference alleges that: a) blatantly, by design and on purpose, transgressing and misusing their judicial authority and power; b) by design and for ulterior motives, usurping the authority, powers and territory of other constitutional offices and making them redundant in violation of the scheme of the Constitution; c) indiscriminate and biased use of so-called suo moto powers under Article 184 (3) of the Constitution by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice; and d) Violating the Code of Conduct, in particular by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice.

The reference says that the LHCBA is the oldest and most prestigious bar association in the subcontinent. The LHCBA was not only in the forefront of the famous lawyer’s movement but also takes pride in having initiated it. However, the aforementioned movement was for the restoration of the rule of law, meritocracy and was primed against a military dictator and for the sole purpose of restoring some of the judges back in their 'jobs'. The LHCBA along with the intelligentsia and other segments of civil society strongly feels that the objectives of the movement have been sacrificed at the altar of creating hegemony for Mr. Justice Iftikhar Muhammad Chaudhry, in order for him to perpetuate his illegal actions and to give decisions against the previous coalition Government led by the Pakistan Peoples' Party Parliamentarians (PPPP).

The LHCBA mentions in its reference to the Supreme Judicial Council that the legislature through the 18th Amendment introduced Article 175 A in the Constitution providing for a two tier process for the making of appointments of Judges to the superior courts. The names of the Judges were supposed to be nominated by the Judicial Commission and having been so nominated they were to be confirmed by a bi-partisan Parliamentary Committee. However, the Supreme Court, under the guidance of Mr. Justice Chaudhry entertained manoeuvred petitions challenging the procedure provided for in Article 175 A. Contrary to all norms and practices and in violation of the principle of the separation of powers, the Supreme Court practically 'remanded' the case to the parliament for reconsideration. Resultantly, the Parliament passed the 19th Amendment and amended Article 175 A. But that was not the end of the matter as Mr. Justice Chaudhry, then under the garb of the totally illegal and unconstitutional 'Rules of Procedure of Judicial Commission' assumed and grabbed all powers for nominating the names of the Judges to the exclusion of all other members of the Judicial Commission.

The Bar Councils of Pakistan and all the provinces have since created a hue and cry over this illegal action by Mr. Justice Chaudhry, but to no avail.

The reference says that the entire judicial system of the Country is reeling under a backlog of cases, which shows no signs of abating. Any hope that the Judiciary would work to methodically decide the backlog of cases soon diminished when Mr. Justice Chaudhry, after his reinstatement, only went after the politically motivated cases and spent, and wasted, all his energy and that of the rest of the Supreme Court on these frivolous cases. The actions of Mr. Justice Chaudhry indeed made headlines in the news but the working and functioning of Supreme Court was dealt a severe blow.

Another incident clearly shows the vindictive mindset of Mr. Justice Chaudhry and the arbitrary manner in which he used suo moto powers under Article 184 (3) of the Constitution. These were exercised in a case involving Ms. Atiqa Odho, who was allegedly caught with some wine bottles on a PIA flight. The lady in question at that particular time was working as an office bearer of party formed by General (R) Pervaiz Musharraf. As soon as the news item appeared in newspapers, Mr. Justice Chaudhry promptly took suo moto notice of the said case. Did the matter involved question any violations of human rights or of public importance? The answer is surely in the negative.

The case of Mr. Arselan Iftekhar (Mr. Justice Chaudhry's son) was also mentioned in the reference as nepotism on part of the Chief Justice and his fellow judges. It says the proverbial lid, however, came off when the scandal of Arslan Iftikhar came to the fore and the blatant manner in which Mr. Justice Chaudhry, Mr. Justice Khiliji Arif and Mr. Justice Jawwad S. Khawaja tried to sweep it under the carpet. Clearly for many, the age of innocence had come to an end. The glory and prestige of the judiciary, already undermined, took a serious hit. The details of the said scandal and the case related thereto are discussed in detail herein below.

The reference points out the unilateral decision of the bench in the case of the presidential elections. Mr. Justice Chaudhry, as the Chief Justice, Mr. Justice Jawwad S. Khawaja, and Mr. Justice Sheikh Azmat Saeed have in the case of the presidential election misconducted themselves by wilfully and on purpose violated the Constitutional provisions and its mandate thereby undermining other Constitutional offices. The Election Commission on July 22, 2013 issued a schedule for election to the office of the President of Islamic Republic of Pakistan. In terms of Article 41 (3) read with Second Schedule of the Constitution, exclusive authority to conduct the Presidential Election, including announcement of the schedule thereof is vested with the Chief Election Commissioner. In utter violation of this constitutional scheme, a three member bench of the Supreme Court consisting of the justices mentioned above not only entertained a direct petition filed by Raja Zafar ul Haq, a senator belonging to PML (N), but by their judgment dated July 24, 2013 passed in C.P No.39 of 2013 overturned the election schedule given by Chief Election Commissioner and replaced it with a new schedule and that too without giving notice to any of the effected parties or the Chief Election Commissioner.

"Only one official of the Election Commission was heard. It has categorically been held by a thirteen member bench of the Supreme Court in the Pir Sabir Shah Case (PLD 1995 SC 66) that when the Constitution gives the Chief Election Commissioner the power to act alone in a particular matter then even the Election Commission has no power or authority to act or interfere in such matters. In its judgment, the three member bench failed to specify as to under which authority they had exercised jurisdiction and as to how Article 184 (3) of the Constitution was attracted."

The reference states obviously the decision was made to please the current Prime Minister who was to proceed for the UMRAH. The said decision has overwhelmingly been ridiculed in the media and by the commentators alike and brought the Supreme Court into disrepute.

In the reference the LHCBA has stressed that filing of a reference against any Judge of the superior Court is always a serious matter and needs to be taken seriously. The LHCBA hopes that necessary lessons have been learnt that persons holding judicial posts should tread with extreme humility, care and caution; keep their subjective personal standards of morality out of the decision making process; keep in mind that spirit and letter of law are equally important and that however well intentioned the decisions may be, the process and substance of law have to be followed; and that office of Chief Justice does not mean that the institution should be run as a personal fiefdom.

In closing the reference states, in view of the above, the Supreme Judicial Council is requested to initiate appropriate proceedings against Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Jawwad S. Khawaja, Justice Khilji Arif and Justice Sheikh Azmat Saeed for having misconducted themselves and take appropriate measures for their removal as Judges of the Supreme Court of Pakistan.

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