ISLAMABAD, June 25: A lead counsel for Chief Justice Iftikhar Mohammad Chaudhry on Monday denied claims that there was an atmosphere of cordiality during the CJ’s March 9 meeting with President Gen Pervez Musharraf and heads of three intelligence agencies. He said in the Supreme Court that the threats hurled at the CJ could not even be divulged.
“I cannot tell you the kind of threats given to the CJ, who was in the hands of the intelligence chiefs, but he (CJ) stood his ground and that was where the judges should also stand,” Barrister Aitzaz Ahsan said before a 13-member larger bench of the Supreme Court hearing a petition filed by the chief justice challenging the presidential reference against him.
The mention of threats surfaced when Justice Mohammad Nawaz Abbasi recalled a court ruling declaring un-Islamic and illegal a video of a woman victim prepared by the Sialkot police for presenting before the court as evidence.
The reference against the chief justice, Barrister Ahsan said, had been formulated on the basis of information provided by intelligence agencies and that was why heads of at least two agencies had been summoned by the president to his meeting with the CJ on March 9.
“There is so much absurdity in the affidavit of Chief of Staff to the President, Lt-Gen (retd) Hamid Javaid, that I intend to prepare a chart of these,” he said, adding that the people who accepted these at face value must be gullible.
He emphasised that the source of information should be legal, clean, untainted and lawful.
“You cannot break into the houses of superior court judges to snoop,” he said.
“Is it still going on?” asked Justice Khalilur Rehman Ramday, who heads the bench. “Yes, they are doing it and every conversation made by each one of you is being recorded,” Mr Ahsan said.
“Thank God, I am an old man,” Justice Ramday observed in a lighter vein. Mr Ahsan quipped: “They must have a duly archived record of your (Justice Ramday) younger days.”
When Justice Abbasi mentioned that phone conversations were listened to by operators, Mr Ahsan suggested a firewall to discourage bugging.
The chief justice, he emphasised, had been sent on compulsory leave under the Presidential Order (PO) 27 of 1970 after commencement of the Supreme Judicial Council hearing of the presidential reference and after appointment of the acting chief justice.
He asked how could the ACJ take oath when the office of the chief justice was neither vacant nor available even for a temporary period on March 9.
He claimed that the PO 27 was illegal and it had not been validated by any assembly. He said the law provided handle to the executive to blackmail superior court judges.
If the orders sending the CJ on forced leave under the PO 27 were valid, Mr Ahsan said, then the earlier orders of restraining the CJ from performing his judicial function by the president and the SJC and the appointment of the ACJ were invalid.
Recalling the reference filed against Justice Shaikh Shaukat Ali in 1969, Justice Ramday observed that to his mind, the PO 27 was a one-time legislation created to deal with Justice Shaukat. “Then there used to be a factory to churn out presidential orders as every day a new PO was issued to deal with the judge,” Justice Ramday said.
Referring to the 1998 dismissal of the Benazir Bhutto government, Barrister Ahsan said the government had been ousted and the National Assembly dissolved just for conceptualising the idea of sending judges of the superior court on forced leave.
He also cited arguments of Khalid Anwar who, while defending in the Supreme Court then president’s action of dismissing the Benazir government, had described the proposed bill of sending judges home as “pitting the judicial lamb before an executive lion”.
“Are we really a lamb,” Justice Ramday asked.
“This is time to establish that judges are not lambs,” Barrister Ahsan said, adding that here the government had pulled up the law (PO 27) from the grave, applied it on the CJ and presented a headless lamb before the lion.
Maintaining that the PO 27 was not in the mind of lawmakers, otherwise they would have validated it under the eighth or 17th amendment, he said the PO 27 was a dead law which had died after ‘delivering two babies’ (sending on forced leave Justice Shaukat Ali and Justice Fazal Ghani during the Yahya Khan tenure in 1969), but here it was discovered from the graveyard where it should be buried forever.
If thinking of law could be visited upon by imposing severest penalty, then the law itself enacted or resurrected from the graveyard was ultra vires, he said.
