ISLAMABAD, May 25: Justice Khalilur Rehman Ramday, who is heading a 13-member larger bench of the Supreme Court hearing identical petitions challenging a reference against Chief Justice Iftikhar Mohammad Chaudhry, on Friday acknowledged the public importance of the case and said that when there was disquiet in the land and blood was being spilled into the streets, how could we say it was not?
“The only thing we have to determine is the jurisdiction of this court to interfere in the matter,” Justice Ramday said, adding that everybody should know that the bench was concerned with issues only and not the petitions.
Barrister Aitzaz Ahsan, representing the chief justice, recalled different judgments to establish that courts had always guarded the security of tenure of judges and extended their jurisdiction in this regard.
“This golden thread should run through the judgment which this larger bench is going to deliver,” he emphasised.
“The golden thread should be on beneficence and the ouster (lack of authority of the court to interfere) should always be interpreted for the benefit of the people,” Justice M. Javed Buttar corrected.
Barrister Ahsan recalled an observation earlier made by the presiding judge that the real stakeholders of a judicial system were the people and not the judges or court officers because access to justice was a fundamental right of all citizens.
Aitzaz Ahsan cited judgments on cases of Ziaur Rehman, Saeed Ahmed, Mustafa Khar, Haji Saifullah and Zafar Ali Shah and said articles 281 of the 1972 interim Constitution and articles 269, 270 A and 270 AA of the 1973 Constitution were always inserted to validate acts of martial law governments, but these could not deter the Supreme Court from exercising its jurisdiction for judicial review.
Referring to the 1989 Haji Saifullah case, Aitzaz Ahsan said that Wasim Sajjad had delivered a message of the then army chief Mirza Aslam Beg to former chief justice Nasim Hasan Shah sitting on a bench hearing petitions against the dissolution of the then National Assembly. The message was not to restore the Junejo government.
At this, government’s counsel Malik Qayyum, who was a judge at that time, conceded that he and Justice Ramday were witnesses to that.
Justice Ramday, however, said he would like to deny the fact and expressed the desire to write a book after his retirement to disclose many things.
“Justice Ramday is denying but not contradicting the fact,” Barrister Ahsan quipped and described the admission on the part of Malik Qayyum as a great disclosure. “We expect bombshells in the book,” Barrister Ahsan said.
He relied heavily on the arguments of Sharifuddin Pirzada who is representing President Pervez Musharraf to oppose the maintainability of chief justice’s petition. In the Zafar Ali Shah case, Sharifuddin Pirzada argued that the power of judicial review could never be ousted despite the removal of clauses.
Barrister Ahsan wanted to cite some events of Quaid-i-Azam Mohammad Ali Jinnah from the previous arguments of Sharifuddin Pirzada, but he was not allowed by Justice Ramday who observed that “we usually rely on verses from the Holy Quran, Hadith or sayings of the Quaid-i-Azam when we have to justify acts which are not justifiable”.
“There is no need to rely on anything if good deeds are to be done,” Justice Ramday observed.
Barrister Ahsan cited in details the transition phase from the martial law periods to civilian governments and said Shariffudin Pirzada had the distinction of suggesting amendments to the Constitution to validate all acts done during the martial law regimes.
He cites Justice Yaqoob Ali Khan’s observation from the Asma Jilani case. The judge had said: “When coercive apparatus of the state is in the hands of the usurper, the people and the courts are silent.”
“This is also engraved in the epitaph of Justice Yaqoob,” Justice Ramday informed the counsel.
Barrister Ahsan, however, continued to read the judgment and said that laws which had come out of the foul breath of the usurper were never recognised by courts and when time came he was tried for high treason.
Justice Ramday observed that whatever “we did to validate such laws were not only illegal and unconstitutional but are also malicious”.
Barrister Ahsan also referred to an incident when he was in jail along with the late poet Habib Jalib during Ziaul Haq’s martial law regime. One day, when the wife of the poet came to see him, their meeting was upsetting for both because of the presence of an intelligence agency man. Mr Jalib was quite perturbed after the meeting, Mr Ahsan recalled and said that when he asked, the poet recited a couplet: “Halaat ka matam tha mulaqat kahan thi, Jo keh na sakay baat who cheray se aiyan thi.”
Justice Ramday, however, described Mr Jalib as a man worth weighing in gold and said that at the time of his death he went empty handed as he had no property or asset.
