Justice Chaudhary et al

It seems important to think about the present condition of the Supreme Court of Pakistan, considering relations with any other country in this era seem to depend on the working of the Constitutional institutions in that State. Very briefly, the Chief Justice of Pakistan was suspended for alleged charges of misconduct, which he could not explain despite being given a hearing by the honourable Pakistan General. The action of the General of suspending the Chief Justice Iftikhar Mohammed Choudhary has received almost unequivocal condemnation worldwide, and made the judge a hero.

This picture with the sacked Pakistan Supreme Court Chief Justice Iftikhar Chaudhary highlights the sorry state of institutions in the neighbourhood.

The present issue has been consuming a piece of my mind for quite some time. And I write an opinion on this partially because of this consumption having reached a saturation point; and also because of the recent interaction of the Justice (Retd.) Khalil-ur-Rehman Khan and his views on the same issue.

Let me first present a case for the General. Possibly he was ill-advised and did not foresee that his order of suspension of the country's top judicial figure will result in such an adverse reaction both from the Bar and the Bench in the country and also from other democracy-respecting nations. That is all can be put forward in the General's favour.

Making all possible efforts to avoid passionate argumentation, it is important now to analyse three things. Firstly, why did such an event occur in Pakistan and is only the General guilty? Secondly, can any parallel of such an attack on the judiciary be found in India and what were the reactions to it? And thirdly, on a broader plane, will this prove to be fatal for the General? It might be possible that some of the comments might be borrowed from Justice Rehman Khan. Be that as it may, it will still be useful to jot his views down and supplement them with my own.

An answer to the first question is prima facie quite simple that the General removed the judge in a shabby manner, though on a deeper thought one seems to realise that the judiciary is equally culpable to have brought about such a situation in which the executive can bully the judiciary. (See, Deccan Herald, March 13, 2007)

Pakistan has faced three coup-de-etats by Ayub Khan, Zia-ul-Haq and Pervez Musharraf (in chronological order). The first Constitution of Pakistan came into force in 1956, but was suspended in 1958 by Ayub Khan. Then in 1973, another attempt was made, but the Constitution was put in abeyance by General Haq in 1977. In 1991, Constitutional rule was restored again but in 1999, the present General took over. In other words, all attempts to have a democratic constitutional rule in Pakistan have been nipped in the bud by these coups. The judiciary could have raised its voice against such a military takeover by annulling it and declaring it unconstitutional, which it failed to do. Even in 1999, the Musharraf coup received judicial sanction. So, blaming the judiciary for past inaction will not be wholly unjustified. Weak institutions owing to a possible lack of democratic and liberal culture may be reasons for a dismal constitutional working in Pakistan.

The second question is of simulating the Pakistan situation in India. An example of an attack on the Indian judiciary which comes immediately to one's mind are the two supersessions (one of three majority Judges of Fundamental Rights case to appoint Justice Ray in their stead in 1973 and the other of Justice Khanna, the sole dissenting judge in Habeas Corpus case to appoint Justice Beg in 1977), in which the executive displayed its muscle by breaking a convention of appointing the seniormost judge as the Chief Justice of the Supreme Court of India, and Mrs. Gandhi received great personal ridicule for having acted too despotically to satisfy her own ends. On both the occasions, the superseded judges resigned in protest immediately. In Pakistan, attack on the judiciary are not uncommon and Supreme Court judges have been removed in the past. In Indian constitutional history, there is not a single member of the higher judiciary who has been removed. A possible exception is that of Justice Jaffer Imam who was convinced to resign in the early 1960s due to an illness which affected his mind. Pakistan judges (not only Supreme Court but also High Courts) should have stood up against such a brassy attack on their esteem and honour. It is a matter of principles and most of the judiciary relinquishing their posts would have ensured the General to learn a lesson. The judiciary which is the only organ upon some faith still remains could have become the symbol of people's dignity, which has long been tampered with by military tyrants in Pakistan.

As regards the third question of whether this will prove to be fatal for the General, it appears that a comment on this would be too early, although if the issue aggravates and does not wash out of the public memory (which is quite likely,), and international pressures are put on the General, he might have to go. After a cursory look at the political system prevailing in Pakistan, it seems really queer how anything like this could exist. The real executive (the Prime Minister and his Council) is an astonishing burlesque because it has absolutely no powers in the real sense except to act on the directions of the General. Pakistan displays a new form of the parliamentary system of democracy.

On the whole, the situation is deprecable and disheartening.