Risk

Aitzaz Ahsan is Chief Justice Chaudhry's lawyer. He recalled the above events on a recent visit to London. Transcribed by Michael Griffin, author of Reaping the Whirlwind: Afghanistan, Al Qa'ida and the Holy War (Pluto Press, 2003).

A chief's justice

On March 9, Chief Justice Iftikhar Muhammad Chaudhry, presiding over his bench in the Supreme Court, was informed that the president, who is the chief of army staff, would like to see him.

The chief justice was happy. He had an agenda to discuss on the appointment of judges. He had requested a consultation and had a list of judges that he took to the president to come to some decision.

Instead of discussing the appointment of judges, the president began to discuss charges the general had formulated against the chief justice. And sitting with him, this general-president, were four other generals, three in military uniform. They encircled the chief justice while the president, also in uniform, outlined the charges.

"Yes, well I've read about them," said the chief justice. "Lawyers have written a letter to me about some of them and most have been published in the press, there has been an outcry on that basis. They are spurious. Nobody takes them seriously."

The general said: "No, but I take them seriously."

The justice said: "Oh? Up to you."

The general said: "I'll make an indictment to the Supreme Judicial Council."

"Well that is your choice, sir. You can make the indictment, but I tell you the charges are spurious."

"Then you have an option."

"What is the option?"

"Resign."

The justice said: "I'm not resigning."

"But you've got to resign."

The justice said, "No."

After fervent persuasion, the general-chief of army staff left the room, leaving the justice in the custody of his colleagues. They were very anxious to extract a resignation because the general had instructed the justice to resign, and if the chief of army staff instructed you to resign, you had to resign. But the chief justice kept refusing and saying, I assume meekly and softly, that he too was a chief – just not their chief, because he was not wearing their uniform.

The long and short was that the justice was detained for five hours and driven in custody to his house where he was detained with his family until March 13. The army had a Plan A, but no Plan B.

In pure military fashion, what do you do if the chief justice is refusing to resign? You secure the Supreme Court. How do you secure the Supreme Court? By appointing an acting chief justice. How do you appoint an acting chief justice when there is already a chief justice? You suspend the chief justice. How do you suspend a chief justice? You find a reference.

So immediately a reference was churned out of a computer in some joint secretary's office and sent to the Supreme Judicial Council. And because the matter had been referred to the Supreme Judicial Council, therefore the chief justice was suspended. But nobody had read the reference.

While he was under house arrest with his children and family, all his servants had been picked up by the intelligence agencies for interrogation. Pakistan had turned a new page. First the lawyers and the bar association came out militantly in defence of the chief justice. Then, the people.

The Supreme Judicial Council had appointed March 13 for the first hearing of the chief justice. That was the first time the chief justice came out of his house in four days. Four days of confinement with his telephone lines cut, television signals jammed, newspapers prohibited, with intelligence agents serving his food. That day there was a big demonstration outside the Supreme Court and that day he retained me as his lawyer. It was a great privilege, from amongst all lawyers, to be selected by the chief justice of Pakistan when his life, his liberty and reputation were at stake. The only thing I asked him, when he asked me to be his lawyer, was: "Do not buckle!"

"I am faced by desperate men," he said, "but there is no way they can break me."

I then said, "There is one other thing. From now on, no public statements, no media conversations. If the judges learn in the next month or the next six weeks that you have turned from a judge into a politician, I will have lost the case."

He abided assiduously.

Since he was receiving invitations to address bar associations, we took the decision that he would. But with that we took another decision that was crucial: to travel to the bar associations by road. We did not know when we decided about the kind of response we would get from the people of Pakistan. It was phenomenal.

When we entered Faisalabad at 3am, the whole town was alight, celebrating. All the shops and bazaars were open, people were chanting slogans, dancing, beating drums and it took us five hours to get to Kacheri Gate. Fifty thousand people marched with us and several hundred thousand remained in the squares or went back to bed after the chief had passed. There were similar scenes from Islamabad to Lahore, from Peshawar to Multan.

The proceedings were held in camera at the Supreme Judicial Council in Islamabad. The Supreme Judicial Council is composed of colleagues of the chief justice who are immediately junior to him. Each in his turn could become the Chief Justice of Pakistan if the chief justice was prematurely ousted.

Eighteen hours before the Supreme Judicial Council was due to meet, driving back with the chief justice, a little depressed and despondent, I said to him: "Chief, I think the goose is being cooked."

He said: "What do we do?"

"We have to go and petition the Supreme Court."

"Who will petition the Supreme Court?"

"The Chief Justice of Pakistan."

"Who? Me?"

"Yes."

Everybody and his grandmother in Pakistan thought that we were not going to fight. As I was going to leave the chief justice's house, he held my hand and whispered in my ear: "Just go and lodge the petition."

To argue the petition and to establish that a chief justice could petition his own court, my associates and I scanned every jurisdiction on this earth for the last 500 years of judgment. The cases I quoted were from Trinidad & Tobago and Belize, from the United Kingdom and India. Nowhere had the chief justice of a country sued the head of state in his own court. This was something without precedent.

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