PAKISTAN: Removal of the Chief Justice manifests the loss of judicial independence due to absolute executive control by the military regime

President Musharaff removed the Chief Justice of Pakistan, Iftikhar Chaudhry, on March 9, 2007 after summoning him to the President’s Camp Office in the military premises.

The President thereafter proceeded to declare the Chief Justice to be non-functional. Following this the Chief Justice was not allowed to return to the Supreme Court and he is said to be prevented from meeting anyone including his closest relatives. Meanwhile, an acting Chief Justice was sworn in.

This move is a clear demonstration of the complete disregard for the separation of powers within the present military administration of President Musharaff who came to power by a military coup in 1999. After coming into power the president also changed the constitution to make himself the supreme leader of the country. This move to remove the Chief Justice is seen as unprecedented and unconstitutional. However, given the complete change of the power structure within the country where the president holds absolute power this decision is a clear message that the respect for the independence of the judiciary is not part of the political scheme of present day Pakistan. The President clearly wants a judiciary that is subservient to his wishes and under his complete control.

This decision completely shatters the illusion held by many including some lawyers associations that the independence of the judiciary is still possible in the country. The military dictatorship has completely reshaped the country’s legal system and norms. Now it is within the power of the president to remove the Chief Justice himself without following the usual procedures laid down in the constitution to ensure that no superior court judges can be removed except through a process of internal inquiries conducted by the Supreme Judicial Council. That model of protection of the tenure of judges from undue interference by the executive is irrelevant within a political scheme in which the president holds absolute power.

The move by the President has not lead to the resignation of other Supreme Court judges or other superior court judges. If the Supreme Court wants to assert its independence as against the absolute control by the executive this could be done only by way of an unconditional defense of their chief, the Chief Justice. That there has been no such move from the Supreme Court is a clear indication that the judiciary has accepted their role to be subordinate to that of the president. A Supreme Court judge in Pakistan can now be removed in the same manner in which any public officer can be removed, that is at the mere wish of the executive.

The Chief Justice was involved in the hearing of some cases relating to disappearances and some sou moto actions in cases of gang rape and torture at the time of his removal. He is also acknowledged to be judicially active in pointing out maladministration within the government. This apart, he has functioned within the same legal framework that was shaped by President Musharaff after he took over power. The present move shows that even slightest manifestation of independence on the part of judges will not be tolerated by the present regime. It requires a complete subordination of the judiciary to the executive.

This demand for total subordination may also be due to the mass dissatisfaction that is expressed throughout the country against the military regime for many reasons. The regime may fear that the unrest within the country may lead to many forms of references for judicial redress and thereby open up new avenues for criticism against the existing regime. There is also a speculation that the president may want an extension of the terms of his office and this might lead to challenges in court. In such an event the President may want assurances of the absolute loyalty of the Supreme Court.

The removal of the Chief Justice and his virtual house arrest will have a chilling effect throughout the country. If the Chief Justice himself can be treated in this manner who else will feel free and be at liberty to express themselves? As there is serious protest on the part of lawyers and others against the removal of the Chief Justice it is not unlikely that further arrests and other repressive measures may follow.

The Asian Human Rights Commission condemns the removal of the Chief Justice. This act by the President is a further manifestation of the end of the independence of the judiciary in Pakistan. The issue of the independence of the judiciary cannot be fought with any success without challenging the structure of power imposed by the military regime in which the executive holds absolute power. The present mass unrest regarding the abuse of power by this regime which has engaged in such acts as large scale disappearances and the removal of the basic freedoms of people necessarily poses the issue of democracy within Pakistan. The military regime which has manipulated the argument in its favour on the basis of the abuse of power by some elected regimes is now using its own absolute power to crush all freedoms including any semblance of judicial redress that may have been possible due to the long tradition of judicial independence which prevailed in Pakistan before the military regimes destroyed the democratic structure in the country. The present issue of the Chief Justice reiterates the need to reestablish democracy within the country and thereby to make the independence of the judiciary once again a possibility.

Document Type : Statement
Document ID : AS-044-2007
Countries : Pakistan,