The government has effected a bewildering shift in its stance about the functional position of Mr. Justice Iftikhar Mohammad Chaudhry. It now says that he is on "compulsory" leave; thereby necessitating appointment of Mr. Justice Javed Iqbal as the acting Chief Justice of Pakistan.
On the day he was stopped from functioning as the head of the apex court, on March 9, 2007, the notification issued by the Law Ministry had said that the President "does restrain Mr. Justice Iftikhar Mohammad Chaudhry to act as Chief Justice of Pakistan as he is unable to perform the functions of his office due to facts mentioned in the reference made under Article 209". That reference was made to the Supreme Judicial Council (SJC) the same day by the President after a meeting with Mr. Justice Chaudhry Iftikhar some time earlier that day.
Immediately thereafter Mr. Justice Javed Iqbal was sworn in as the acting Chief Justice, for he was the next senior most "available" judge of the Supreme Court. The word "available" does not figure in the Article 209 of the Constitution, but was added by the government to justify the bypassing of the "next senior most" judge, Mr. Justice Bhagwan Das who was on leave. The SJC in its first meeting on same day issued orders restraining the Chief Justice of Pakistan from performing functions as the Chief Justice of Pakistan.
While the shift in the government stance has intrigued the general public as well as the legal fraternity, the jurists interpret it as a cover-up operation to hide the fact that the first notification and its follow-up were illegal. In this context, they say even that the appointment of Mr. Justice Javed Iqbal as acting Chief Justice of Pakistan is also unconstitutional because the office of the Chief Justice of Pakistan was not vacant.
It is perhaps for this reason that the acting chief justice has said that the moment Mr. Justice Bhagwan Das becomes available "I will return to my chamber". How firm is the ground that the government has now taken, only time will tell. But given the bizarre genesis of the order regarding compulsory leave of a judge, one would not be surprised if there would be yet one more shift in the official stance.
The legal provision to send a judge on compulsory leave was created during the martial law regime of General Yahya Khan to cover the then government's position in the Justice Shaukat Ali case. In 1973 when the new constitution was enforced all acts, deeds and laws done/passed during the Yahya period were accorded constitutional cover under Article 270. In 1975 the Zulfiqar Ali Bhutto government adopted this law as an act of parliament. How a dormant law of this kind has been pressed into service by the present government to send home on compulsory leave the Chief Justice of Pakistan is bewildering for the people and unacceptable for some senior members of the legal community.
Former law minister Syed Iftikhar Hussain Gilani says the Chief Justice cannot be sent on compulsory leave, to say nothing of suspending him. That there was no mention of compulsory leave in either the notification or the press release of March 9, 2007, clearly suggests that it is an afterthought. It does, therefore, indicate that the action against the presently non-functional Chief Justice of Pakistan was taken in great haste.
And, if it is claimed that was not the case then it would mean the relevant officials are either inept and not competent to do the task assigned to them or purposely misled the President along the garden path. In either case, they deserve to be sacked for causing embarrassment to the President that will be difficult to live down. The shift now undertaken and effected surreptitiously tends to seriously undermine the credibility of the presidential reference. Before the Law Ministry goes for another such legal 'invention' or a convoluted construct, it would be proper to wait for Mr. Justice Bhagwan Das to take over the helm in the apex court. Meanwhile, the two sides should observe a ceasefire.
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