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The ongoing judicial crisis in Pakistan has taken a new twist with the revelation that Chief Justice Chaudry was physically restrained from leaving the president's camp office in Rawalpindi until 5:00 p.m. on the day he was removed from his position as the country's top judicial officer. In his petition to the Supreme Court, the chief justice states that he was taken into custody on March 9, 2007, when he refused to tender his resignation as the chief justice of Pakistan.
According to his petition, he was summoned to the president's camp office and upon his arrival was ordered to resign by the "referring authority" who was, in fact, the president, Gen. Pervez Musharraf. The president, it is learned, became "most upset" when Chief Justice Chaudry refused to comply. He was then allegedly detained against his will for a period of five hours in an attempt to force his resignation.
The chief justice revealed in a 40-page petition filed through his counsel before the Supreme Court of Pakistan that his detention was an attempt to humiliate both him and the office he rightfully held and to threaten him because he, in his capacity as chief justice, was attempting to assert the relief owed to the common man by the constitutional authority vested in him by his office.
The manner in which the military regime has tried to persuade the chief justice to resign, the physical restraint exercised against him and the subsequent fabricated charges would all amount to criminal activities if these incidents had happened in a democracy. The executive does not have the power to request the chief of the judicial branch or, for that matter, any member of the judicial branch to resign. To use such power violates the concept of the independence of the judiciary in a most fundamental manner.
While the judiciary has the right, after judicial examination, to force a government or the chief executive out of power, the executive, on the other hand, does not have similar power over the judiciary. All that the executive can do, even when there are extraordinary grounds for the removal of a chief justice or a judge of the Supreme Court, is to follow the procedure of the law and leave the matter in the hands of the courts themselves. To call the chief justice into an office of the president in order to persuade him to resign is itself an act for which the executive should be held responsible. Without the slightest doubt, it can be said that this act constitutes contempt of court in the clearest terms.
Suppose, for example, that the prime minister of England or the president of the United States or France were to call the chief justice of the country into their office and demand that the chief justice resign. Would such a meeting not be a clear affront, not only to the individual concerned, but to the institution of the judiciary itself? What if the judicial officer were further restrained form leaving the executive's office for five hours or, for that matter, even a few minutes? Clearly, any act of this nature in any of the countries mentioned above would lead to an outcry demanding the immediate resignation of the executive who engaged in such an act. It is thus evident that the current judicial crisis in Pakistan reflects a political system that is masquerading as a democracy.
Under these circumstances, the actions of lawyers and others in Pakistan who have called for the reinstatement of the chief justice and the resignation of Gen. Musharraf seem not only legitimate but, in fact, are the only appropriate action that should take place within a society that has any respect for the independence of the judiciary. Consequently, the international community has a duty to support the people of Pakistan who are now facing a grave threat to their highest judicial institution.
The following words from the chief justice's petition demand careful consideration from all people who support the independence of the judiciary, democracy and human rights: "And this country has, indeed, seen many a whimsical and arbitrary military head turning in wrath towards independent judges and seeking to subordinate and overawe the judiciary, sometimes to turn around the course of pending proceedings or impending judgements.
"The entire edifice of the independence of the judiciary would crumble like a house of cards, if a contrary view is taken, as any judge about to deliver a judgement against the executive will run the jeopardy of being effectively and summarily sent home. This has, indeed, happened in the past in this country in times when the Constitution stood abrogated or had been suspended or held in abeyance.
"If a contrary view is taken, which judge will then stand up to the executive?"
The imperative to respond to the actions of Pakistan's president is not limited to the country's judges, for Pakistan is at a crossroads, a crisis that calls for all people of the country as well as the international community to stand up together to protect Pakistan's judicial institutions from this autocratic attempt to subvert them.
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(Basil Fernando is director of the Asian Human Rights Commission based in Hong Kong. He is a Sri Lankan lawyer who has also been a senior U.N. human rights officer in Cambodia. He has published several books and written extensively on human rights issues in Asia.)
