The Unfortunate
Episode
By Col. Riaz Jafri
(Retd)
Westridge, Rawalpindi
While the legal Goliaths are wresting with the
‘to be or not to be’, please allow
this commoner to pick up the gauntlet according
to his common sense and ask the following questions,
which if answered honestly could put the whole
unfortunate episode in its correct perspective.
I call it an unfortunate episode because nothing
could be darker on the horizon of a country’s
judiciary than bringing its Chief Justice to justice:
1. Can the President under the constitution and
on advice from the PM send a Reference to the
Supreme Judicial Council against the Chief Justice
of Pakistan ?
The answer is Yes.
2. Who normally presides over the SJC?
The answer is the CJP.
3. Can the CJP (Justice Iftikhar Ch.) against
whom the reference has been sent preside over
the proceedings of the SJC?
The answer is No.
4. Can the CJ against whom the reference has been
sent to the SJC sit on any other case of the SC
during the period under which his reference is
being heard by the SJC?
The answer is No.
5. Does that not amount to his being technically
'ineffective' as the CJ, though he is still the
CJ of Pakistan ?
The answer is Yes. He is unable to perform his
duties.
6. Who will preside the SJC in his absence?
The answer is, Next AVAILABLE senior judge of
the SC.
7. Could the next senior judge be appointed as
an ACTING Chief Justice of Pakistan when the actual
CJP is UNABLE to perform his duties?
The answer is Yes.
8. Who is the competent authority under the constitution
to appoint such an Acting CJ?
The answer is The President of Pakistan.
That's what the President of Pakistan did. What
is so unconstitutional about it? Had it been unconstitutional
in any way, would Justice Javed Iqbal not have
refused to take the oath of the Acting Chief Justice
of Pakistan? Pardon my saying so, does the person
ascending to the highest pedestal of judiciary
in the country not know what is constitutional
and what is not constitutional?
Then, again, has the President taken any action
against the CJ? No, he has just sent the reference
to the SJC to look into the allegations levelled
against the CJ by 'any source' - as the constitution
says, and send its findings and recommendations
to him. It will be only then that if the SJC finds
the CJ guilty of misconduct and recommends him
to be removed from the office that the President
‘may’ remove him from the office.
I think referring the matter to the SJC is to
uphold the sanctity of the judiciary in the country
rather than destroying it, as some of the pseudo
intellectuals would want to believe.
Now regarding harping on the 'Summoning' of the
CJ by the President, and someone trying childishly
to bring in the Balochistan factor etc. I think
it is unfortunately most unbecoming of the so-called
politico-legal brains who think they could make
Musharraf bite a hot potato by their such antics.
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