ISLAMABAD, June 18: The counsel of Chief Justice Iftikhar Mohammad Chaudhry on Monday informed the Supreme Court that contents of the reference and subsequent events were enough to prove personal ‘malice’ on the part of the president after failing to acquire resignation from the chief justice.
“The contents of the reference transgress the legal criteria and are based on mala fide as stand proved by the president in his interviews to the private television channels, subsequent affidavits by the chief of staff to the president and intelligence chiefs, as well as by the orders of the Supreme Judicial Council of restraining the CJ,” Barrister Aitzaz Ahsan argued before a 13-member larger bench seized with a challenge by the CJ on the filing of the reference against him, composition of the Supreme Judicial Council and its competence to try the chief justice.
“Extraneous persons and agencies during the meeting on March 9 in fact intended for the collateral purpose of exerting pressure on the chief justice to obtain resignation from him, but when respondent No 1 (president) failed to get the desired result, he decided to prosecute the chief justice,” Barrister Ahsan alleged.
The final source of proving malice floating on the surface were the newspaper reports on subsequent events of putting the CJ incommunicado, cutting of his telephone lines, manhandling of the CJ by police and lifting of vehicles parked at the official residence of the CJ.
Citing the cases of Wali Khan, Nawaz Sharif and Benazir Bhutto wherein it was held that newspaper reports which were not denied could be relied upon, he said the even press reports were enough to prove the ground for malice.
Justice Faqir Khokhar recalled a sedition case filed against an English daily and said former prime minister Nawaz Sharif had called him to move the case by considering the newspaper clipping as a proof to establish the offence against the newspaper. He said he had suggested to the prime minister that the Evidence Act did not recognise newspaper clippings as admissible.
Barrister Ahsan said the act of filing the reference was mala fide and based on personal malice, unholy haste and vitiated by role of extraneous agencies. Besides, human mind was applied neither by the prime minister nor by the President in formulating the reference against the head of the apex court.
“Similarly, no proper and lawful process was adopted in opinion formation as enshrined in article 209 of the Constitution. Therefore, the entire process was completed in such unholy haste and speed that due care and caution required by law were not applied at all,” he said and added that malice was floating on the reference.The notification against the CJ was signed by a section officer, Mumtaz Ahmed, he said, adding that the notification should have been routed through different officers of the law ministry before finally going to the prime minister and the president. “Then again it should have been sent to the secretary law for subsequent forwarding to the Supreme Court. How can this lengthy process be completed in just three hours,” he asked and maintained that only a mala fide and dishonest act could be done at such vitiated pace.
Barrister Ahsan cited the Pakistan Steel Mills judgment in which the Supreme Court had struck down the privatisation deal because it was finalised in indecent haste. “If an indecent haste can render the privatisation of an industrial unit void then what about the haste which has shattered the main pillar of the state,” he asked.
Referring to India, he said a republic of over one billion people with divergent culture, castes, creed, colour and dialect was united only because of two institutional values -- democracy and judiciary.
He criticised the role of judiciary in Pakistan by referring to its pro-establishment judgments from the Maulvi Tameezuddin case to the Syed Zafar Ali Shah case.
At the outset, Barrister Ahsan drew the attention of the court to an attack on the residence of sister-in-law of the chief justice in Quetta where 15 armed men barged into her house and harassed the family. “Apparently this is work of the intelligence agencies,” he deplored and urged the court to take notice of the incident.
At this, Justice Kahlilur Rehman Ramday, the presiding judge, consulted fellow judges, but did not pass any order on the issue.
