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BEFORE THE SUPREME JUDICIAL COUNCIL

Subject: Reference under Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973 against Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice Jawwad S. Khawaja, Mr. Justice Khilji Arif & Mr. Justice Sheikh Azmat Saeed

___________

This reference is being sent by Lahore High Court Bar

Association (LHCBA) in pursuance of a Resolution passed by

the General House in its meeting held on 30.07.2013. The

present reference includes the following allegations against the

judges, which constitutes mis-conduct on their part in terms of

Article 209 of the Constitution of the Islamic Republic of

Pakistan (the Constitution).

a) Blatantly, by design and on purpose, transgressing and

mis-using their judicial authority and power;

b) by design and for ulterior motives, usurping the

authority, powers and territory of other constitutional

offices and making them redundant in violation of the

scheme of the Constitution;

c) Indiscriminate and biased use of so-called suo moto

powers under Article 184 (3) of the Constitution by Mr.

Justice Iftikhar Muhammad Chaudhry, the Chief Justice;

and

d) Violating the Code of Conduct in particular by Mr. Justice

Iftikhar Muhammad Chaudhry, the Chief Justice.

Before proceeding in the matter, it is useful to set out the

context and the events that led to the passing of resolution by

LHCBA. LHCBA is the oldest and most prestigious bar

association in the subcontinent. LHCBA was not only in the

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forefront of the famous lawyer’s movement but also takes

pride in initiating it. However, the afore-mentioned movement

was for the restoration of the rule of law, meritocracy and was

primed against a military dictator and not to restore some of

the judges back in their “jobs”. LHCBA along with intelligentsia

and other segments of the civil society strongly feels that the

objectives of said movement have been sacrificed at the altar of

creating hegemony for Mr. Justice Iftikhar Muhammad

Chaudhry, the Chief Justice, in order for him to perpetuate his

illegal actions and to give decisions against the previous

coalition Government led by Pakistan Peoples Party

Parliamentarians (PPPP).

After assuming office on 22nd of March, 2009, there have

been a series of cases and events where Mr. Justice Iftikhar

Muhammad Chaudhry, the Chief Justice and certain other

Judges including the judges named in this reference have

conducted themselves in a manner that leads to the irresistible

conclusion that they were actively working to establish

themselves as an alternate power centre within the hierarchy

of the Government by undermining other institutions and

functionaries of the Government and thier authority. In this

regard, a particular media group, whose staff and employees

went out of the way to unusually promote Mr. Justice Iftikhar

Muhammad Chaudhry remained in the forefront.

The peculiar circumstances and traumatic events through

which the judiciary as a whole underwent in the year 2007 till

2009 kept the Bar Associations and lawyers at bay over the

transgressions and excesses committed by Mr. Justice Iftikhar

Muhammad Chaudhry and some of his brother Judges on the

bench soon after 22nd March 2009. It was vainly hoped that

perhaps with (muted) criticism leveled at judiciary, it would

temperate itself. While some said, rather openly, that Mr.

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Justice Iftikhar Muhammad Chaudhry had a vendetta against

the previous Government others held the belief that he was

genuinely attempting to eradicate corruption from the

Government and public life and in doing so any and all

violations of legal and constitutional principles should be

overlooked. Nontheless, it was hoped by many that Mr. Justice

Iftikhar Muhammad Chaudhry, once having assumed the

office, would forget the past and work towards the

independence of the Judiciary and would appoint competent

and able candidates to the office of judgeship so as to make the

judiciary functional and more accessible to ordinary citizens of

the Country. LHCBA feels that independence of a Judge does

not only mean and imply independence from the influence of

the executive (which, barring a few judges, in real terms, was

never the case with this Country’s judiciary) but also

independence from personal preferences, prejudices,

ambitions, biases and whims. The previous Government

committed a cardinal sin by not reinstating the judges

immediately after assumption of office and its prevarications

in this regard needlessly lingered the issue and made the

Judges to lead processions alongside political parties, an

unsavoury sight for many in the legal profession more so

when the democratic order had been restored.

However, Mr. Justice Iftikhar Muhammad Chaudhry,

soon after his reinstatement to the office, went after the

previous Government and those Judges in the superior Courts,

who had taken oath under the PCO and even under the

Constitution, with a vengeance. The afore-mentioned Judges

were soon laid off not through Article 209 of the Constitution

but through a judgment delivered by a 17 member bench of the

Supreme Court under the guidance of Mr. Justice Iftikhar

Muhammad Chaudhry and in one stroke 100 odd Judges, most

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of whom were experienced, were sent back home leaving the

High Courts bereft of experience. As a direct consequence of

this judgment, the judicial system of Pakistan took a set back

from which it has not yet recovered. The subsequent

appointments of the judges in the High Courts and to the

Supreme Court made it clear that Mr. Justice Iftikhar

Muhammad Chaudhry did not want persons of professional

integrity and independent bent of mind to serve as judges

rather he was actively accumulating a “force of loyalists” in the

Judiciary. Year after year, posts of judges in the High Courts

were filled with persons of questionable legal knowledge, who

lacked even the basics about the decorum and norms

associated with superior judiciary. Names of various persons

of professional competence, integrity and background were

dropped and not considered for judgeship of High Courts on

flimsy grounds simply because they were opposed to the

philosophy of Mr. Justice Iftikhar Muhammad Chaudhry or

were perceived to be belonging to groups in the bar politics

opposed to Mr. Justice Iftikhar Muhammad Chaudhry.

The legislature through the 18th Amendment intrdouced

Article 175 A in the Constitution providing for a two tier

process for making the appointment of Judges to the superior

Courts. The names of the Judges were supposed to be

nominated by the Judicial Commission and having been so

nominated they were to be confirmed by a bi-partisan

Parliamentary Committee. However, the Supreme Court under

guidance of Mr. Justice Iftikhar Muhammad Chaudhry

entertained manouevard petitions challenging the procedure

provided for in Article 175 A of the Constitution. Contrary to all

norms and practices and in voilation of principle of separation

of powers, the Supreme Court practically “remanded” the case

to the Parliament for reconsideration. Resultantly, the

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Parliament passed 19th amendment to the Constitution and

amended Article 175 A of the Constitution. But that was not the

end of the matter as Chief Justice Iftikhar Muhammad

Chaudhry then under the garb of totally illegal and

unconstitutional “Rules of Procedure of Judicial Commission”

assumed and grabbed all powers for nominating the names of

the Judges to the exclusion of all other members of the

Judicial Commission. The Bar Councils have since been make

hue and cry over this illegal action by Mr. Justice Iftikhar

Muhammad Chaudhry but to no avail.

During the course of confirmation of certain Judges of

the Lahore High Court in the Judicial Commission, the then

Chief Justice, Justice Chaudhry Ijaz, made observations

regarding the conduct, behaviour and competence of the said

judges and recommended that they be not confirmed. The said

recommendations were overruled by the Judicial Commission

but upheld by the Parliamentary Committee. As As usual,

manerouvered Petitions were filed directly in the Supreme

Court and entertained by Mr. Justice Iftikhar Muhammad

Chaudhry. Mr. Justice Iftikhar Muhammad Chaudhry, against

all norms, constituted a “four member bench” comprising of

Justice Shahid Siddique (since retired), Mr. Justice Jawwad S.

Khawaja, Mr. Justice Khilji Arif Hussain and Mr. Justice Tariq

Pervaiz (since retired). The benches are, as a matter of

practice, constituted by odd numbers so that there should not

be a division of opinion in equal numbers. However, it was

clear to the keen observers of the Supreme Court that the said

bench was constituted with the sole purpose of seriously

diluting the powers of the Parliamentary Committee. The said

bench vide Judgment dated 21.03.2011 passed in Civil Petitions

No. 10 & 18 of 2011 made redundant the role of the

Parliamentary Committee in the appointment procedure of the

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Judges and reduced it to that of a post office in stark violation

of the scheme of the Constitution.

Lahore High Court and Sind High Court, once the pride of

the Country, are now in shambles filled mostly with Judges

whose judgments leaves one’s head hang in shame. The entire

judicial system of the Country is reeling under the backlog of

the cases, which shows no signs of abating. Any hope that the

Judiciary would work to methodically decide the backlog of

cases soon diminished when Mr. Justice Iftikhar Muhammad

Chaudhry, after his reinstatement, only went after the

politically motivated cases and spent, and wasted, all his

energy and that of the rest of the Supreme Court on these

frivolous cases. This action of Mr. Justice Iftikhar Muhammad

Chaudhry indeed made headlines in the news but the working

and functioning of Supreme Court was dealt a severe blow.

Reference in this regard may be made to the letter written by a

former LHCBA president, belonging to a Group of lawyers

once considered favourably disposed towards Mr. Justice

Iftikhar Muhammad Chaudhry, and the charges leveled therein

at the choice and manner of appointment of judges. Reference

may also particularly be made to the judgments more

particularly rendered by the current Chief Justice Balochistan

High Court, current Chief Justice Peshawar High Court and

Mr. Justice Shaukat Siddique, Judge Islamabad High Court,

which defy all common and legal sense. These Judges are all

protégés of Mr. Justice Iftikhar Muhammad Chaudhry and

were appointed at the bench by him specifically to perpetuate

his designs. Some of the judgments of afore-mentioned

Judges will be presented at the time of hearing of this

reference. The history of absurd judgments rendered by some

of the judges since 2009 would not be complete without

making a specific mention to the decision rendered by the

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Chief Justice Lahore High Court wherein he ordered the

Federal Government to “construct Kalabagh Dam”. This

judgment too was equally and strongly ridiculed by

commentators of all stripes and especially by intelligencia of

the smaller provinces.

In the same vein, attention of the members of Supreme

Judicial Commission may be drawn towards the Judgment

rendered by Mr. Justice Khilji Arif, Mr. Justice Sheikh Azmat

Saeed and Mr. Justice Gulzar Ahmad in Presidential Reference

No.1/2012 deciding the question of eligibility of Mr. Justice Kasi

and Mr. Justice Riaz Ahmad Khan as Chief Justice Islamabad

High Court. Not surprisingly, the majority judgment rendered

by Mr. Justice Khilji Arif and Mr. Justice Azmat Saeed went in

favour of Mr. Justice Kansi who is a close confidant of Mr.

Justice Iftikhar Muhammad Chaudhry from the days of their

practice in Balochistan and a judge admittedly junior and much

inferior in caliber to Mr. Justice Riaz Ahmad Khan.

Attention of the members of the Supreme Judicial

Council may also be drawn towards a Resolution passed by

LHCBA on the role the current Chief Justice of Balochistan

High Court and Mr. Justice (Retd) Chaudhry Ejaz played in

getting their chamber colleagues as Judges of Lahore High

Court with the active connivance of Mr. Justice Iftihar

Muhammad Chaudhry.

Mr. Justice Iftikhar Muhammad Chaudhry also abused

the powers under Article 184 (3) of the Constitution by taking

suo moto notices or entertaining Petitions under the said

Article just about every thing under the sun and blatantly

interfering in the policy and economic matters of the previous

Government, which matters constitutionally rest within the

sole prerogative of the Government, and thereby seriously

undermining the principles of political accountability of a

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democratic Government by the political sovereign i.e. the

people of this Country. Mr. Justice Iftikhar Muhammad

Chaudhry did not formulate any policy guidelines or rules

regarding the matters that could or could not be taken up

under Article 184 (3) of the Constitution. Everything was left at

the whims of Mr. Justice Iftikhar Muhammad Chaudhry and

he exercised this jurisdiction most whimsically. Serious

criticism was levelled at the manner and the motivated way in

which the suo motto jurisdiction was being exercised by Mr.

Justice Iftikhar Muhammad Chaudhry by the Bars and

commentators in the Country and International organizations

but no heed was paid to this criticism.

Just to cite one incidence in regard to the manner in

which the jurisdiction under Article 184 (3) of the Constitution

was arbitrarily exercised and abused by Mr. Justice Iftikhar

Muhammad Chaudhry. In the case of Dr. Tahir ul Qadri

(Constitutional Petition No. 5 of 2013), another Article 184 (3)

case, Bench No. 1 headed by Mr. Justice Iftikhar Muhammad

Chaudhry, the Chief Justice took the following view regarding

locus standi in its judgment released on 13.2.2013:

“The petitioner has also failed to prove his bona fides in view of the facts, which have been noticed at the hearing of the case, to invoke the jurisdiction of this Court coupled with the fact that under the peculiar circumstances he has no locus standi to claim relief as it has been prayed for in the petition.”

However in less than a month Mr. Justice Iftikhar

Muhammad Chaudhry in a case titled “Sh.Riaz ul Haq and

another Vs. Federation of Pakistan and others” (C.P No.53/2007

and 83/2012) took the following view on locus standi:

“Whenever there is a violation of Articles 9 and 25 of the Constitution, it will involve a question of public importance with reference to enforcement of the Fundamental Rights of the citizens, who may approach

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the Court for the enforcement of these rights under Article 184(3) of the Constitution without having to discharge the burden of locus standi.”

Another incident, which clearly shows the vindicitive

mindset of Mr. Justice Iftikhar Muhammad Chaudhry and the

arbitrary manner in which the suo moto powers under Article

184 (3) of the Constitution were exercised, involves Ms. Atiqa

Odho, who was allegedly caught with some wine bottles on a

PIA fligt. The lady in question at that particular time was

working as an office bearer of party formed by General (R)

Pervaiz Musharaf. As soon as the news item appeared in

newspapers, Mr. Justice Iftikhar Muhammad Chaudhry

promptly took suo moto notice of the said case. Did the matter

involved question of any violations of human rights or of

public importance? The answer is surely in negative. But Mr.

Justice Iftikar Muhammad Chaudhry wanted to rub it in

General (R) Pervaiz Musharaf out of his vendetta against him.

A jurisdiction which, in all probability, was created in the

Constitution to be used in matters pertaining to alleviating the

problems facing the down trodden sections/individuals of

society, environmental issues concerning soceity at large etc

and that too only in extraordinary circumstances was

shamelessly used by Mr. Justice Iftikahr Muhammad

Chaudhry for settling personal scores. In the same vein,

reference may also be made to a direct petition filed by one

Fazal Karim Butt in January 2012 against the previous

Government alleging it to be in the process of removing the

then ISI chief, General Shuja Pasha. Interestingly, the Petition

was returned by the office of the Supreme Court being not

mainainable. However, on an appeal, Mr. Justice Iftikhar

Muhammad Chaudhry surprisingly not only entertained a

purely speculative petition but also summoned the Attorney

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General. The Attorney General argued that this was

speculative petition and that the Court should not entertain

petitions based solely on media reports and also made a

statement in the Court that the Government had no intention of

removing the ISI Chief. The matter should have ended on the

statement of the Attorney General but Mr. Justice Iftikhar

Muhammad Chaudhry then instructed the Attorney General to

submit the reply in writting from the Government. Was this an

appropriate petition for the Chief Justice to entertain under

Article 184 (3) of the Constitution? Was this not an abuse of the

judicial and administrative powers by Mr. Justice Iftikhar

Muhammad Chaudhry? Instances abound where suo motto

powers were arbitrarily abused by Mr. Justice Iftikhar

Muhammad Chaudry, which will be brought to the notice of

this Hon’ble forum at the time of hearing of this reference.

In particular, the ire of Mr. Justice Iftikahr Muhammad

Chaudhry was directed at the members/ministers of the

previous Government and the bureaucrats working under

them. Unprecedented number of contempt notices were

issued to the members/ministers of the previoius Government,

which, barring Yousaf Raza Gillani’s contempt matter, are still

pending. It became a norm with Bench No. 1 headed by Mr.

Justice Iftikhar Muhammad Chaudhry to summon senior

bureaucrats and to make them sit from morning till evening in

his Court and to humiliate them. Suo moto notices were taken

on newspaper reports or direct Petitions were entertained on

alleged scandals under the previous Government without any

proof. Mr. Justice Iftikhar Muhammad Chaudhry would then

direct the Investigation agencies to start probing the matter.

Notable amongst the alleged scandals were the steel mills case,

the Haj case, the NICL case etc. However, till date no final

decision came out of these cases except for the brutal and

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vicious media trial of the persons involved in the said cases.

Precious time of the Supreme Court and the Country was

wasted in prosecuting the infamous case involving National

Reconciliation Ordinance (NRO), brought by persons with

personal, political and questionable motives, which in the end

went down without a bang. It is noteable that not a single

person who benefitted from the NRO and was subsequently

tried was found guilty and each one of them was honourably

exonerated. The intention of course was not to prosecute the

allegedly corrupt persons but to put Asif Ali Zardari, the then

President, and the previous Government led by Pakistan

Peoples Party Parliamentarian under the mat. The zeal and the

manner in whcih the said case was prosecuted by the Judges

of the Supreme Court is revealing of the mindset of the

Judiciary against Pakistan Peoples Party in general. Even

when the previous Government relented and decided to write

the letter to swiss authorities, the Judges of the Supreme Court

took days to vet the language of the said letter and that too in

chambers. This infamous episode and the manner in which

the Judges micro-managed the NRO case brought no laurels to

the Judiciary. The result was that the functioning and

operations of the previous Government came to a grinding

halt. A particular media group portrayed the Chief Justice as

the custodian and paragon of the morality of the Nation, a

Messiah and a saviour. Every verdict of the Supreme Court

that went against the previous Government was hailed as the

victory of Mr. Justice Iftikhar Muhammad Chudhry over Asif

Ali Zardari by that particular media group. As the tickers and

banner headlines about the judiciary became frequent and

more prominent so did the moral certitude of Mr. Justice

Iftikhar Muhammad Chaudhry whose statements during the

course of hearing of cases became evermore shrill along with

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some of his companions more notably Mr. Justice Jawwad S.

Khawaja. These statements made during the hearing of the

cases ran as tickers 24/7 and made banner headlines in the

newspapers. Some of the most egregious statements made by

Judges on the bench are reproduced hereinbelow.

The members of the Judicial Council must ask

themselves the question whether these statements behove of a

Judge of a Superior Court. LHCBA in this regard shall file

more newspaper clippings subsequently.

The maxim that the Judges speak through their

judgments was altogether forgotten. The media too fed into

this frenzy by highlighting even the minutest expressions and

statements of Mr. Justice Iftikhar Muhammad Chaudhry and

discussing every minor detail of the cases in the daily talk

shows. However, this practice soon reduced the Supreme

Court down to a media circus. The institution of Judiciary,

which was once thought to be above the political fray, is now

largely perceived to be involved in a naked political power

struggle. Not surprisingly, in this struggle, Mr. Justice Iftikhar

Muhammad Chaudhry only managed to bring down the

institution of Judiciary.

Another time honoured tradition in the superior Courts

for hearing by the full Court of all important cases was

trampled by Mr. Justice Iftikhar Muhammad Chaudhry. In

almost all the important cases, Mr. Justice Iftikhar Muhammad

Chaudhry constituted benchs comprising of himself and a few

trusted lieutinents who would unflinchingly do his bidding.

Resultantly, mostly the judgments in the last four years that

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came out of the Supreme Court had no dissenting voice, a

telltale sign that the Judges in the benches constituted by Mr.

Justice Iftikhar Muhammad Chaudhry were not acting or

deciding cases independently.

The proverbial lid, however, came off when the scandal

of Arslan Iftikhar (the beloved son of Mr. Justice Iftikhar

Muhammad Chaudhry) came to fore and the blatant manner in

which Mr. Justice Iftikhar Muhammad Chaudhry, Mr. Justice

Khiliji Arif and Mr. Justice Jawwad S. Khawaja tried to brush it

under the carpet. Clearly for many the age of innocence had

come to an end. The glory and prestige of the judiciary,

already undermined, took a serious hit. The details of the said

scandal and the case related thereto are discussed in detail

hereinbelow.

The Constitution of Islamic Republic of Pakistan 1973 is

democratic and federal in character and like all other federal

Constitutions elsewhere, it prescribes a structure based on

trichotomy of powers meaning thereby it creates a

Government consisting of a Parliament, Executive and

Judiciary. The scheme of the Constitution makes it abundantly

clear that each organ of the Government is independent of each

other in its working and decision making. The Constitution

painstakingly creates the boundaries and jurisdictions of each

organ of the Government within which they have to operate.

For example, the employees of the Executive (Federal and

Provincial) are appointed through a set of procedures over

which the Executive has the exclusive control and termination

of service of such employees and any inquiry in regard thereto

is also strictly the mandate of the Executive. Similarly, the

members of the Judiciary at all levels are appointed by the

Judiciary itself and their termination again is under the

exclusive control of the Judiciary. In the case of the superior

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Judiciary, the Supreme Judicial Council is comprised of only

the members picked from the Judiciary itself. Same is the

case with the Parliament.

The Constitution itself creates mechanisms for regulating

the terminating the services of the employees of the Executive,

which in this case is Services Tribunal. The Judiciary is

strictly barred (Article 212 of the Constitution) from interfering

in matters and entertaining Writ Petitions pertaining to the

terms and conditions of the services of the employees of the

Government.

Likewise, a Member of Parliament is elected through the

elections conducted by the Election Commission and can only

be disqualified through the procedure provided by Article 63 of

the Constitution. The Supreme Court in its celebrated

judgment famously known as Pir Sabir Shah’s case PLD 1995

SC 66 categorically held that only the forum of Chief Election

Commissioner in terms of Article 63 of the Constitution is

competent to decide the question of disqualification of a

member of Parliament and that its decision is final for all

intents and purposes.

Another principle that underpins the Constitution and

reinforces the position postulated above is that all the

Constitutional offices are equal and one does not necessarily

have primacy over the other. In this regard, it may be stated

that all the High Courts of Pakistan are creatures of the

Constitution and are not subordinate to the Supreme Court. In

fact both the High Courts and the Supreme Court are

Constitutional Courts. For all intents and purposes, the High

Courts and the Supreme Court are distinct and separate

entities. The subordinate judiciary in each province, on the

other hand, comes under the direct supervision and control of

the respective High Courts and are subordinate to the

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respective High Courts in terms of Article 203 of the

Constitution. The Supreme Court only has the jurisdiction

vested in it by virtue of Articles 184, 185 and 188 of the

Constitution and has appellate jurisdiction over the High

Courts in some cases.

However, Mr. Justice Iftikhar Muhammad Chaudhry

having been restored on 22.3.2009 by design and with mala

fide purpose floated the idea of “Judicial Policy”, a thoroughly

unconstitutional measure in that it impinges upon the authority

and powers of respective High Courts. The purpose was not to

regulate and manage the cases pending in different Courts at

various levels but to take over the command and control over

the Courts upon which Mr. Justice Iftikhar Muhammad

Chaudhry, the Chief Justice, had otherwise legally and

constitutionally no power or control. The “Judicial Policy” was

thus used as a vehicle to create the stranglehold of Mr. Justice

Iftikhar Muhammad Chaudhry on the respective High Courts

and the courts subordinate to such High Courts. Mr. Justice

Iftikhar Muhammad Chaudhry also initiated a highly unusual

and unheard of practice of addressing the Bar Associations at

Muffasils at regular intervals and to give them audience at the

Supreme Court where the delegations would go and meet him.

The idea seemed to be to create a “force” of which Mr. Justice

Iftikhar Muhammad Chaudhry would be the

Commander-in-Chief.

When the previous Government nominated Mr. Justice

Mian Saqib Nisar as acting Chief Justice, Lahore High Court

and appointed Mr. Justice Khawaja Sharif, the then Chief

Justice Lahore High Court, as a Judge of the Supreme Court,

Mr. Justice Iftikhar Muhammad Chaudhry within hours and in

indecent haste constituted a three member bench of the

Supreme Court in the night of 13 February 2010 to hear Petition

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Nos. 2, 3 and 4 of 2010. Neither the Petitioners in the Petitions

were present nor the Respondents and the bench (of which Mr.

Justice Jawwad S. Khawaj was not surprisingly a member)

without giving any hearing to the Government suspended the

notification of the said nominations. In the subsequent days,

Mr. Justice Iftikhar Muhammad Chaudhry addressed the

Judges and praised Mr. Justice Mian Saqib Nisar for not giving

in to the temptation of becoming a Chief Justice of Lahore High

Court. Not only that, Mr. Justice Iftikhar Muhammad

Chaudhry let the TV cameras in the room and the entire

proceedings went live on all TV channels. It is the considered

opinion of LHCBA that had Mr. Justice Saqib Nisar and Mr.

Justice Khosa shared between themselves couple of years as

Chief Justice, things could have dramatically turned around

for Lahore High Court. Unfortunately it was not to be as Mr.

Justice Iftikhar Muhammad Chaudhry preferred Chief

Justices of Lahore High Court, who lacked courage, had no

idea about the institutional pride and who let Mr. Justice

Iftikhar Muhammad Chaudhry blatantly interfere with their

working and who did not oppose the appointment of

incompetent and conviction-less Judges. This is not to say that

all Judges in Lahore High Court are incompetent. There are

some able, honest, hardworking Judges presently working in

Lahore High Court but their numbers can be counted on the

fingers of one hand.

Once, Yousaf Raza Gillani, the then Prime Minister, made

a facile and needless statement on the floor of the National

Assembly to the effect that the Judges were restored through

an executive order and thus can be removed through an

executive order. It was a statement made by a politician and as

such should have been ignored. However, such were the times

that some of the Judges of the Supreme Court literally formed

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a line and proceeded towards the Supreme Court like a caravan

following Mr. Justice Iftikhar Muhammad Chaudhry who,

again in the dead of the night, constituted a bench and passed

an order in this regard. Record of the said case is with the

Supreme Court and can be summoned by this Hon’ble forum.

While Mr. Justice Iftikhar Muhammad Chaudhry’s bench

exhorted ad nauseaum the virtues of merit and transparency

and even gave a judgment whereby all the civil servants on

extensions or on contract were dismissed with a stroke of pen,

yet Mr. Justice Iftikhar Muhammad Chaudhry kept on giving

extensions in the service contract of Dr. Faqir Hussain as

Registrar of Supreme Court in stark violation of his own

judgment. Dr. Faqir Hussain was of course chosen as

Registrar of the Supreme Court because he would do anything

asked from him by Mr. Justice Iftikhar Muhammad Chaudhry

without any questions. When the scandal of Arsalan Iftikhar

broke, it was Dr. Faqir Hussain who frequented various TV

channels to explain the position of Mr. Justice Iftikhar

Muhammad Chaudhry. Again, it was Dr. Faqir Hussain, who

held an unusual press conference to explain the judgment in

Asghar Khan’s case to the media.

Mr. Justice Iftikhar Muhammad Chaudhry blatantly and

with mala fide violated the principle of trichotomy of power

under which the Courts do not interfere in the investigation of

cases, which lies within the sole and exclusive domain of the

executive. A combined reading of Articles 199 & 184 (3) of the

Constitution makes it clear that superior Courts are Courts of

error i.e. they can only make declarations to the effect that a

judgment of a Court appealed against is wrong or that an

official act complained of is illegal and set them aside. The

superior Courts cannot substitute their judgments with that of

the lower Court and the same holds true for that of the official

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acts and decisions. However, Mr. Justice Iftikhar Muhammad

Chaudhry, in certain high profile cases, not only intervened in

investigations but also gave directions for the investigations to

be conducted by officers of his choice. The record of the cases

is with the Supreme Court and should be summoned from the

office. The LHCBA shall also submit the relevant material in

this regard.

REFERENCE

Apart from the above, Mr. Justice Iftikhar Muhammad

Chaudhry, the Chief Justice, Mr. Justice Jawwad S. Khawaja,

and Mr. Justice Sheikh Azmat Saeed have in the case of

Presidential election mis-conducted themselves by willfully

and on purpose violating the Constitutional provisions and its

mandate thereby undermining other Constitutional offices.

The Election Commission on 22.7.2013 issued schedule

for election to the office of the President of Islamic Republic of

Pakistan. In terms of Article 41 (3) read with Second Schedule

of the Constitution, exclusive authority to conduct the

Presidential Election including announcement of schedule

thereof vests with the Chief Election Commissioner. In utter

violation of this constitutional scheme, a three member bench

of the Supreme Court consisting of Mr. Justice Iftikhar

Muhammad Chaudhry, Mr. Justice Jawwad S. Khawaja and

Mr. Justice Sheikh Azmat Saeed not only entertained a direct

petiton filed by Raja Zafar ul Haq, a senator belonging to PML

(N), but by their judgment dated 24.7.2013 passed in C.P No.39

of 2013 overturned the election schedule given by Chief

Election Commissioner and replaced it with a new schedule

and that too without giving notice to any of the effected parties

or the Chief Election Commissioner. Only one official of the

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Election Commission was heard. It has categorically been held

by a thirteen member bench of the Supreme Court in Pir Sabir

Shah case (PLD 1995 SC 66) that when the Constitution gives

the Chief Election Commissioner the power to act alone in a

particular matter then even the Election Commission has no

power or authority to act or interfere in such matters.

In its judgment, the three member bench failed to specify

as to under which authority they had exercised jurisdiction

and as to how Article 184 (3) of the Constitution was attracted.

Obviously the decision was made to please the current Prime

Minister who was to proceed for the UMRAH. The said

decision has overwhelmingly been ridiculed in the media and

by the commentators alike and brought the Supreme Court into

disrepute.

The bench and its members have also violated Article V

of the Code of Conduct under which a judge is strictly

prohibited from engaging in any public controversy, least of

all, on a political question. The presidential election case was

clearly political in nature with political consequence as it had

been brought by a political party.

As a result of this unconstitutional, illegal and unlawful

interference by the afore-mentioned three Judges, several

political parties boycotted the presidential election thus

relegating a highly symbolic elction to the heighest office of the

Federation to a farce. The outcry on this judgment by the

commentators, media and lawyers is quite instructive as to

how low the institution of Judiciary was brought down by the

afore-mentioned three Judges. The Chief Election

Commissioner too had to resign subsequently on account of

the severe criticism levelled at him.

OTHER INSTANCES OF MISCONDUCT

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LHCBA also would like to draw the attention of the

Supreme Judicial Council at the following cases and instances

where Mr. Justice Iftikhar Muhammad Chaudhry, the Chief

Justice, Mr. Justice Jawwad S. Khawaja and Mr. Justice Khilji

Arif have mis-conducted themselves.

Yousf Raza Gillani’s case

Yousaf Raza Gillani, the then Prime Minister, was tried

under Article 204 for having committed contempt of Court. A

Seven member bench of the Supreme Court seized of the

matter on 26.4.2013 passed a short order holding Yousaf Raza

Gillani to be in contempt and ordered his arrest till the rising of

the Court. The seven member bench, cognizant of the law laid

down in Pir Sabir Shah’s case reported as PLD 1995 SC 66)

shied away from the question of his disqualification by holding

that :

“2. As regards the sentence to be passed against the

convict we note that the findings and the conviction for

contempt of court recorded above are likely to entail

some serious consequences in Crl.O.P.6/12 in terms of

Article 63(1)(g) of the Constitution which may be treated

as mitigating factors towards the sentence to be passed

against him.”

It was, thus, clear that the seven Judges of the Supreme

Court were of the opinion that the matter of disqualification of

Yousaf Raza Gillani rested with the forums provided by the

Constitution i.e. Speaker National Assembly and the Election

Commission. This was the right approach as Yousaf Raza

Gillani could only have been disqualified once the Speaker

National Assembly had so concluded and had sent a reference

to the Election Commission of Pakistan in terms of Article 63

(2) and (3) of the Constitution.

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Despite the fact that the seven member bench of Supreme

Court had by then only passed a short order and had yet to

deliver the full judgment, Dr. Faqir Hussain, the Registrar of

the Supreme Court, took it upon himself (in all probability

without the permission of the seven member of the bench and

most probably under the instructions of Mr. Justice Iftikhar

Muhammad Chaudhry) to implement the judgment of the

seven member bench and wrote a letter to the Speaker National

Assembly for initiating proceedings for disqualifications of

Yousaf Raza Gillani. The record of this correspondence is with

the office of the Registrar of the Supreme Court and may be

summoned at the time of hearing of this Reference. Once the

full judgment was signed by all the seven Judges, the matter

was finally decided by the Speaker National Assembly in

favour of Yousaf Raza Gillani, wherein she concluded that

Yousaf Raza Gillani was not disqualified as a result of the

judgment delivered by the seven member bench of the

Supreme Court.

It may be stated here that the decision rendered by the

seven member bench of the SC holding Yousaf Raza Gillani in

contempt was severely criticized by commentators and it was

held to be a serious encroachment by the Judiciary in the

domain of the Parliament. The fate of a unanimously elected

Prime Minister heading a popularly elected Government, the

argument went, ought to be decided by the Parliament and not

by the Judiciary. It was feared by many that Mr. Justice

Iftikhar Muhammad Chaudhry, out of vendetta that he held for

the previous Government, would jump in to supply the

omissions (as per his wishes) in the judgment of the seven

member bench of the Supreme Court if the Speaker of the

National Assembly (as anticipated) would not disqualify

Yousaf Raza Gillani.

22

As if on cue, certain Petitioners filed Petitions seeking

disqualification of the then Prime Minister, Yousaf Raza Gillani.

Mr. Justice Iftikhar Muhammad Chaudhry promptly formed a

three member bench consisting of himself, Justice Jawad S.

Khawaja and Justice Khilji Arif Hussain and as widely

anticipated rendered a judgment dated 19.7.2012 in C.P. No.40

of 2012 not only disqualifying Yousaf Raza Gillani but holding

him to have been disqualified from the date of the judgment of

the seven member bench of the Supreme Court. In this

manner, the three member bench of Supreme Court overruled

the judgment passed by seven member bench of the Supreme

Court. It is established law and a matter of practice that if a

judgment of the Supreme Court has to be overturned, it can

only be done by a bench having more members than the

previous bench which rendered the judgment.

Be that as it may, Justice Iftikhar Muhammad Chaudhry,

the Chief Justice, Justice Jawad S. Khawaja and Justice Khilji

Arif Hussain made the following unconstitutional

transgressions through their judgment in C.P No.40/2012:

a) The judgment rendered has the effect of repealing

the provisions of Article 63(2) and (3) of the

Constitution. Furthermore, the bench made the

offices of the Speaker of National Assembly and that

of Election Commission redundant through its

judgment. Articles 62 & 63 of the Constitution made

the Speaker of the National Assembly and the

Election Commission as the sole arbiters for the

disqualification of a member of the Parliament.

b) The ratio of Pir Sabir Shah’s case (reported as PLD

1995 SC 66) rendered by thirteen member bench of

the Supreme Court was that the Chief Election

Commissioner only had the exclusive jurisdiction to

23

disqualify a member of the Parliament and the Court

further held that even an appeal provided to

Supreme Court against such disqualification would

be unconstitutional. The Judgment in Pir Sabir

Shah’s case was binding on the three member

bench, which it willfully ignored and with mala fide

flouted. The three member bench thus, on purpose

and by design, violated the judgment rendered by a

thirteen member bench of Supreme Court.

c) Article 184 (3) of the Constitution grants unto the

Supreme Court all the powers that a High Court

possesses under Article 199 of the Constitution.

However, the Supreme Court can only exercise

jurisdiction under Article 184 (3) of the Constitution

when a question of public importance and

enforcement of fundamental rights is involved and it

can only pass orders/judgments that are in the

nature of writs issued under Article 199 of the

Constitution. It is an established law and is so stated

in plethora of judgments that under Article 199 of the

Constitution a Court cannot substitute its own

judgment for that of the sub-ordinate tribunal or any

authority whose judgment/decision is under

challenge. The three member bench violated this

constitutional principle of long standing by

substituting its judgment for that of the Speaker of

the National Assembly. The only course open to the

three member bench of the Supreme Court was to

set aside the decision rendered by the Speaker

National Assembly and remand the case back to the

Speaker for decision afresh.

d) The seven member bench of the Supreme Court did

24

not disqualify Yousaf Raza Gillani and rightly left it

to the other Constitutional offices i.e. Speaker and

Election Commission to decide the question of his

disqualification. The three member bench reviewed

the decision of the seven member bench and

practically overturned it by disqualifying Yousaf

Raza Gillani and that too from the date of Judgment

of the seven member bench.

The original record of the case may kindly be summoned

from the office Supreme Court.

Arsalan Iftikhar’s case

In and around first week of June, 2012, news started appearing

in the media (both print and electronic) about the money taken

by the Arsalan Iftikhar (the beloved son of Mr. Justice Iftikhar

Muhammad Chaudhry) from one Riaz Malik, a business tycoon

and owner of Baharia Town, whose cases in the Supreme

Court were being heard by none other than Mr. Justice Iftikhar

Muhammad Chaudhry himself. Shaheen Sebahi, a renowned

journalist and a known apologist of Mr. Justice Iftikhar

Muhammad Chaudhry and belonging to the same media group

which used it publications and TV channel for propagating the

image of Mr. Justice Iftikhar Muhammad Chaudhry, in an

internet programme made startling facts about the scandal.

Any self respecting and conscientious Judge in the position of

Mr. Justice Iftikhar Muhammad Chaudhry would have hung

out his robes over the scandal and would have lived the rest of

his life in isolation in a secluded corner. In a few days, Mr.

Justice Iftikhar Muhammad Chaudhry took suo moto notice of

the news items appearing in the print and electronic media

regarding his son shenanigans and constituted a three member

bench headed by him and including, not surprisingly, Justice

25

Jawwad S. Khawaja & Justice Khiliji Arif. The bench

summoned journalists and TV anchors, (again not

surprisingly) all belonging to the same media group for

6.6.2012. At the time of hearing, the then Attorney General, Mr.

Irfan Qadir, repeatedly asked Mr. Justice Iftikhar Muhammad

Chaudhry not to sit on the bench as the matter involved his son

and that this would be a serious violation of Clause IV of the

Code of Conduct but Mr. Justice Iftikhar Muhammad

Chaudhry, true to his form, paid no heed to these reasonable

requests and continued presiding over the bench saying that he

is following the tradition of Caliph Omer who famously

lynched his own son. All but one of the journalists and

anchors of that particular media group of course by design

professed ignorance about the matter or termed the

incriminating material as “questionable”. However, Mr.

Kamran Khan, the famous host of “Aaj Kamran Khan ke Saath”,

finally spilled the beans and detailed the delinquencies of

Arsalan Iftikhar upon which Mr. Justice Iftikhar Muhammad

Chaudhry had to disgracefully recuse himself from the bench.

Mr. Justice Iftikhar Muhammad Chaudhry thus violated

Clause IV of the Code of Conduct firstly by presiding over a

case in which his son was involved and then by constituting

himself a bench to hear the said case. Mr. Justice Iftikhar

Muhammad Chaudhry again mis-conducted himself by

presiding over a bench on 6.6.2012 and 7.6.2012, involving the

cases of Baharia Town and Riaz Malik over which Mr. Justice

Iftikhar Muhammad Chaudhry was again repeatedly asked not

to sit but he persisted. Subsequently, Mr. Justice Iftikhar

Muhammad Chaudhry, as in the case of Arslan Iftikhar, and

equally disgracefully had to recuse himself from the said

bench too.

However, during the course of hearing while Mr. Justice

26

Iftikhar Muhammad Chaudhry was heading the bench hearing

his son’s case, he made a statement that he had absolutely no

knowledge about the business of his son (believed by none in

the Country) and further startled every one by declaring that he

held the wedding ceremony of Arslan Iftikhar from the loan

obtained from House Building Finance Corporation. One of the

Senators, Faisal Raza Abidi, repeatedly appeared in various

media outlets and pointed out that utilizing the loan from

House Building Finance Corporation for any purpose other

than to build a house was illegal but no heed was paid from

any quarter. The taking of loan from House Building Finance

Corporation and then utilizing it for an extraneous purpose too

constitutes misconduct on the part of Mr. Justice Iftikhar

Muhammad Chaudhry for which this Hon’ble Forum may get

the requisite record from House Building Finance Corporation

and direct Mr. Justice Iftikhar Muhammad Chaudhry to

produce the same.

Be that as it may, the following are the violations

committed by Mr. Justice Iftikhar Muhammad Chaudhry, Mr.

Justice Jawwad S. Khawaja and Mr. Justice Khiliji Arif.

a) Mr. Justice Iftikhar Muhammad Chaudhry himself

sat and heard the case involving his son, which is a

clear violation of Article IV of the Code of Conduct

for judges of Superior Judiciary. Under the said

Article, a Judge must decline resolutely to act in a

case involving his own interest, including those of

persons whom he regards and treats as near

relatives or close friends.

b) Although his son was involved in the case, yet Mr.

Justice Iftikhar Muhammad Chaudhry chose to

constitute the bench of the remaining two Judges

and thereby acted in the case, again, in violation of

27

the Article IV of the Code of Conduct.

c) The two member bench (Mr. Justice Jawwad S.

Khawaja & Mr. Justice Khilji Arif) that was

subsequently constituted by Mr. Justice Iftikhar

Muhammad Chaudhry held vide order dated

14.6.2012 that the matter did not involve question of

public importance and is, therefore, not a case in

which Article 184 (3) of the Constitution can be

invoked and that any relevant agency of the

Government will investigate the matter.

d) After National Accountability Bureau along with

other staff of Federal Investigation Agency and

Islamabad Police started the investigation, Arsalan

Iftikhar approached the said bench which

surprisingly not only entertained the said

application but strangely stayed the

proceedings/investigations being carried out by

National Accountability Bureau. Having earlier held

that Article 184 (3) of the Constitution was not

attracted to the case and that it had no jurisdiction in

the matter, the two member bench saw it fit to

entertain the plea of Arslan Iftikhar vide its order

dated 30.8.2012 under a jurisdiction non existent in

their view and then proceeded to constitute a one

man commission (Dr. Shoaib Suddle) to investigate

the matter. It is also interesting to note that Registrar

of the court on the same date thought it fit to issue a

press release about the appointment of Commission

and order of the Court.

e) When Dr. Shoaib Suddle filed an interim report

alleging that Arslan Iftikhar is involved in tax

evasion case, the bench hurriedly vide its order

28

dated 6.12.2012 held that Article 184 (3) of the

Constitution is not attracted to the case and disposed

of the case.

Clearly the two member bench consisting of Mr.

Justice Jawwad S. Khawaja & Mr. Justice Khilji Arif went out

of its way to favour the son of Mr. Justice Iftikhar Muhammad

Chaudhry and thereby acted in a manner which is violative of

Articles III, IV and V of the Code of Conduct.

PCO Judges case

A 17 member bench issued directions in its judgment dated

31.7.2009 reported as PLD 2009 SC 879 that PCO judges shall

be proceeded against under Article 209 for violating the order

of the Court dated 03.11.2013. In the proceedings before the

implementation bench, when the PCO judges raised objections

regarding the veracity and authenticity of order dated

03.11.2007 and filed applications for proceedings against

Generals and other bureaucrats who assisted General (Retd)

Pervaiz Musharaf in staging the Coup on 3.7.2007, a six

member bench vide order dated 18.5.2011 overturned the

afore-mentioned decision of 17 judges by holding that PCO

judges have ceased to be the judges of the High

Courts/Supreme Court. This was clearly the violation of the

mandate of the decision rendered by 17 member bench as well

as the provisions of Constitution i.e. Article 209. In effect, the

implementation bench repealed Article 209 as after this

judgment the Supreme Court can remove a judge of a superior

Court from his office without resorting to Article 209 of the

Constitution.

It may also be pointed out that order dated 03.11.2007 was

suspect as Mr. Justice Iftikhar Muhammad Chaudhry had

earlier recused himself from hearing the case of

29

disqualification of the then President Pervaiz Musharaf and,

therefore, he could not have signed any injunctive order in that

case.

Surrendering District and Sessions Judges to the ElectionCommission

In the run up to the elections, reportedly one member of

the election commissionin in the absence of and without the

permission of Chief Election Commissioner, wrote a letter to

Mr. Justice Iftikhar Muhammad Chaudhry asking him to lend

the Judges of subordinate judiciary as Returning Officers for

holding the elections. Mr. Justice Iftikhar Muhammad

Chaudhry readily gave the permission, which was patently

against Article 175 of the Constitution and Section 7 of the

Representation of Peoples Act, 1976. In terms of section 7 of

the 1976 Act only officers from executive branch can act as

Returning Officers. Section 7 of the Representation of Peoples

Act, 1976 is reproduced hereunder:

“ Appointment of District Returning Officer and Returning Officer, etc.–(1) The Commission shall appoint, from amongst the officers of the Federal Government, Provincial Governments, corporations controlled by any such Government and local authorities, a District Returning Officer for each District and a Returning Officer for each constituency”

Subordinate judiciary or its members cannot be involved

in election matters under the Constitution or the

Representation of Peoples Act, 1976. Furthermore, as stated

earlier, the subordinate judiciary comes under the

administrative control of respective High Courts and not under

the Chief Justice of the Supreme Court. The Chief Justice of

the Supreme Court, thus, cannot order or ask the sub-ordinate

judiciary to get involved in elections. Itching to be always in

the midst of thing, Mr. Justice Iftikhar Muhammad Chaudhry

30

having earlier committed an illegality by permitting the judges

of subordinate judiciary to be at the disposal of Election

Commission, then went on to commit another illegality by

repeatedly addressing the Returning Officers on matters over

which he had absolutely no authority or power. After the

services of the judges of subordinate judiciary were handed

over to the Election Commission the said judges were deemed

to have been surrendered to the Election Commission and

were at their disposal and were no longer judicial officers. Mr.

Justice Iftikhar Muhammad Chaudhry had no business in

addressing the Returning Officers working for the election

commission.

Before parting with this reference, LHCBA needs to stress

that filing of a reference against any Judge of the superior

Court is always a serious matter and needs to be taken

seriously. LHCBA hopes that necessary lessons have been

learnt that persons holding judicial posts should tread with

extreme humility, care and caution; keep their subjective

personal standards of morality out of decision making

process; keep in mind that spirit and letter of law are equally

important and that however well intentioned the decisions may

be, the process and substance of law have to be followed; and

that office of Chief Justice does not mean that the institution

should be run as a personal fiefdom.

As the tumultous and infamous rein of Mr. Justice

Iftikhar Muhammad Chaudhry as Chief Justice of the Supreme

Court draws to a close, LHCBA hopes that the new Chief

Justice of the Supreme Court on the retirement of Mr. Justice

Iftikhar Muhammad Chaudhry in December 2013 will draw a

line under the said era and shall strive to run the Supreme

Court in a transparent and democratic manner devolving the

31

administrative powers rather than consolidating them in the

office of Chief Justice; make appropriate and reasonable rules

for the exercise of jurisdiction under Article 184 (3) of the

Constitution in consultation wtih the other Judges of the

Supreme Court; appoint honest and capable persons as Judges

in the High Courts and defer to the collective wisdom of the

Judicial Commission; do away with the illegal and unlawful

judicial policy and instead let the respective High Court to

formulate their own devices in the matter and, in future, ignore

all the contrived judgments in particular rendered by Bench

No. 1 of the Supreme Court.

LHCBA reserves its right to approach the Supreme Court

at an appropriate time for revisiting all the appointments made

to the office of the Judgeship at various High Courts during the

period starting from 2009 till the reitrement of Mr. Justice

Iftikhar Muhammad Chaudhry.

In view of the above, the Supreme Judicial Council is

requested to initiate appropriate proceedings against Mr.

Justice Iftikhar Muhammad Chaudhry, Mr. Justice Jawwad S.

Khawaja, Justice Khilji Arif and Justice Sheikh Azmat Saeed

for having misconduted themselves and take appropriate

measures for their removal as Judges of the Supreme Court of

Pakistan.

Lahore High Court BarAssociation, Lahore

Through:-

PRESIDENTABID SAQI

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October 9, 2013