Professional consensus, Islamic traditions, and the Constitution all indicate that the Pakistan Supreme Court will deliver a bold decision in The Chief Justice v. The President of Pakistan to end the military onslaught on the independence of the judiciary (just as the US Supreme Court ended racial apartheid in America with a bold stroke in Brown v. Board of Education of Topeka). The Pakistan Supreme Court understands that any waffling, hair-splitting, or technical hedging in the opinion will only encourage this and future Presidents to sponsor a judicial culture of timidity and subservience. An unequivocal annulment of the President’s Reference against the Chief Justice of Pakistan (CJP) is needed to restore the dignity of the judiciary. Splitting the baby between the President and the Chief Justice will resolve nothing but complicate the matters even further.
Pakistan’s legal community demands that the Supreme Court pioneer a vigorous defense of the judiciary. The open and hostile suspension of the CJP shocked the lawyers of Pakistan. On March 9, 2007, the President dressed in a military uniform summoned the CJP to a small coterie of generals and others. Unproven charges based on questionable and unlawfully obtained evidence were read to the CJP. The CJP was both sweet-talked and threatened to resign. When the CJP refused, the men in the military camp shared the nods and the CJP was suspended on the spot. Armed with self-righteous power, the President and his men detained the CJP while the news of his suspension was released to the world. This show of force by a President who overthrew a democratically elected government, usurped power, and who refuses to shed his uniform even after eight years of unconstitutional dictatorship carried a mal fide purpose. The maltreatment of the CJP was purposefully staged to intimidate the entire Supreme Court. The move, however, backfired, earning the lawyers’ stern and severe opposition.
First time in the history of the country have the lawyers of Pakistan pooled their resources– from Karachi to Khyber– to overturn a Presidential order that they believe is blatantly unlawful. The lawyers’ street protests, periodic but orderly suspension of court appearances, and bar room resolutions cannot be ignored. Of course, the courts must do the right thing without fear of public protests. But the lawyers’ professional outcry is no mere protest. It involves both protest and professional judgment that an unacceptable wrong has been committed. The Supreme Court will take into account the lawyers’ overwhelming belief that the President is forging a subservient Supreme Court that must rule in the President’s favor. A bold annulment of the President’s Reference against the CJP would nip this forging evil in the bud, and assure judicial independence.
Judicial independence is not religious fundamentalism. If anything, judicial independence is part of “enlightened moderation,” a phrase that the President has launched to fight religious extremism. Several Supreme Court Justices are devoutly religious. Some are scholars of Islamic law. They will judge the case in the light of Islamic traditions. The Constitution itself recognizes that Islam is the state religion of Pakistan. Article 31 of the Constitution protects the Islamic way of life and promotes Islamic moral standards. Article 227 mandates that all laws be brought in conformity with the Injunctions of the Quran and the Sunnah, and that no law be enacted which is repugnant to these injunctions. It is therefore natural for Supreme Court Justices to search for an Islamic perspective, as they have, on the President’s Reference against the CJP.
Rejecting the ruler’s intimidation is a core Islamic value found in the Quran and the Prophet’s Sunnah. “Fear them not, but fear me” is God’s injunction to all believers (Quran 3:175), including judges who must neither swerve to wrong nor depart from justice (Quran 5:8). The CJP’s refusal to resign despite pressure from General Musharraf and his men is a fine example of fearlessness. The lawyers of Pakistan have embraced the cause of the CJP, for they admire his personal courage to stand up to men in uniform. Throughout Muslim history, God-fearing jurists and judges have refused to bow down to rulers out of fear or otherwise. The Prophet is reported to have said: “The best striving in the path of God is (to speak) a word of justice to an oppressive ruler. ” (Abu Dawd 37:4330).
Holding these injunctions, it is unlikely that Supreme Court Justices will bend and buckle, out of fear, to whitewash the President’s humiliation of the Chief Justice. The Court’s summary rejection of the scandalous file that the government presented as evidence against the CJP indicates that the Justices are in no mood to sacrifice their Chief to please a President who clothes his authority with military paraphernalia. A bold decision– without ifs and buts– to annul the President’s Reference will advance the Islamic tradition of rejecting the ruler’s intimidation, particularly because the Constitution demands that the judiciary remain independent.
The Supreme Court will face no difficulty in finding that the President lacks the constitutional authority to suspend the Chief Justice. Even if the President has the authority to direct the Supreme Judicial Council to inquire into the CJP’s alleged misconduct, neither the Constitution nor any statutes empower the President to send a referred judge on forced leave, seal his office, fire his staff, take away his privileges, reduce his salary, or detain him. No such measures are available to the President. Hence, the President’s order to suspend the CJP has no basis in law.
Furthermore, the President prejudiced the neutrality of the Supreme Judicial Council. Until the inquiry is complete and the Supreme Judicial Council has conducted a full hearing, the dignity of the judiciary requires that no public disclosure of the inquiry be made. Public disclosure of an inquiry hurts the reputation of a referred judge-an injury that cannot be reversed if allegations of misconduct are found to be false. If a judge has committed a crime, a criminal complaint should be filed against him. The Supreme Judicial Council is not a criminal court. It is a tribunal of judicial ethics. Public disclosure of its proceedings is neither automatic nor mandatory. In openly and publically suspending the CJP before the hearing, the President unlawfully interfered with the proceedings of the Council. The President acted as if the CJP had committed serious crimes against the state and suspension was the only way to prevent him from further damaging the state.
It appears that the President received no expert advice in forming his opinion to send the Reference to the Supreme Judicial Council. The President was obligated to seek experts’ help to sift through the evidence that charges the CJP with judicial misconduct. Modern state practice, the complexity of government, and the rule of law, all require that the President receive expert advice in conducting the myriad affairs of the state. Suspending the Chief Justice of Pakistan is no small matter. Relying on a scandalous dossier that the Supreme Court refused to admit into record, the President formed the constitutionally required opinion in a manner that law cannot uphold. Hence, the very initiation of the President’s Reference is constitutionally unsustainable.
A bold decision must reinstate the Chief Justice of Pakistan with no delay or condition. Once the Chief Justice is restored to office, a properly constituted Supreme Judicial Council may inquire into the allegations against him. The public disclosure of this new inquiry will be made only after the inquiry is complete and the Council is of the opinion that the CJP has been guilty of misconduct and that he should be removed from office. Otherwise, the inquiry will remain a state secret. This is the procedure that many nations of the world use to hold judges accountable and simultaneously protect the dignity and independence of the judiciary.
Ali Khan is a professor of law at Washburn University School of Law in Topeka, Kansas.