Official affidavits not part of court proceedings: Ramday: ‘It’s a crisis, not a case’
By Nasir Iqbal
ISLAMABAD, June 27: The counsel for Chief Justice Iftikhar Mohammad Chaudhry on Wednesday called off a get-together planned to be hosted in honour of the chief justice on Thursday to offset a government excuse for seeking an adjournment due to a likely hostile environment because of the programme.
“If they insist on adjournment then I give an undertaking before the court that the CJ will not come to the bar,” Barrister Aitzaz Ahsan told the Supreme Court’s larger bench hearing the CJ’s petition challenging the presidential reference filed against him.
Supreme Court Bar Association president Muneer A. Malik and the executive committee of the Pakistan Bar Council had invited lawyers to a tea party with the chief justice in the Supreme Court building.
When the court invited Advocate Malik Mohammad Qayyum, representing the federal government, to rebut arguments of Aitzaz Ahsan on the petition, he insisted that the proceedings should be postponed till Monday. He said he wanted to get instructions from his client on the offer made by Barrister Ahsan that the full court of the Supreme Court decide the reference against the chief justice, instead of the Supreme Judicial Council, the very formation of which was under challenge before the bench. “We would like to place all the material before the full court to decide the reference against the CJ,” Malik Qayyum said.
“Alas! This offer could (have) come three months ago,” observed Justice Khalilur Rehman Ramday, who heads the bench. And Mr Ahsan said: “I have not given any offer.”
The court had almost adjourned the hearing on the request of the government counsel but when the petitioner’s side objected and termed it a delaying tactic, Justice Ramday ruled that the court would hear the case on Thursday. “Adjournments are always given for indispensable causes or unforeseen problems,” the judge said.
When Barrister Ahsan was reading out a paper on what he called glaring contradictions in affidavits of Chief of Staff to the President, Lt-Gen (retd) Hamid Javed, and heads of Military Intelligence, Inter-Services Intelligence and the Intelligence Bureau, Justice Ramday observed that he was wasting time because the court would not even look at the affidavits because the three were not party and their affidavits had no legal ground to become part of the court proceedings.
Mr Ahsan alleged that the affidavits were fabrications intended to malign and demean the chief justice. The affidavit filed earlier by the CJ, he said, had been drafted with great care and if called it would be the privilege of the CJ to appear in the witness box to be cross-examined.
Earlier, Mr Ahsan pleaded before the court that the presidential reference against the CJ was illegal and mala fide because it was based on inadmissible information provided by intelligence agencies and, therefore, it should be set aside.
Barrister Ahsan said the Supreme Court had three options to deal with the instant reference against the chief justice. It could decide that under Article 209 of the Constitution, no reference against the CJ could be filed or that the reference should be heard by the SJC presided over by the CJ himself in a similar fashion as had been done by Justice Roberts of the US by chairing the proceedings in a reference against him but not participating in voting. The last option, he said, was that the full court comprising all judges of the Supreme Court should decide the reference against the chief justice as was the dictum established in the Malik Asad Ali and Al-Jihad Trust case.
At the outset on Wednesday, Mr Ahsan said the chief justice wanted a decision in his favour from the court and was ready to leave behind the bitterness of March 9 and 13 when he was suspended followed by the filing of the reference and manhandling by the Islamabad police.
“Under the instructions of my client (CJ), I have deliberately avoided to go into personal details of those judges who are members of the council and against whom the CJ has levelled allegations of bias in the petition,” Barrister Ahsan said.
“This side wants united, cohesive and really strong and empowered court,” he said.
Justice Ramday observed that the instant matter was not a case but a crisis and everybody should endeavour to redefine and reconstruct the whole thing with a sense of reconciliation because already a lot of damage had been done.
Mr Ahsan emphasised that the CJ could neither be suspended through executive orders nor he could be restrained from performing his official function under an interim order of the council. Though other members of the council, including CJs of high courts and judges of the Supreme Court, could be replaced, but not the Chief Justice of Pakistan, since there is no substitution. Therefore, the chief justice could also not be replaced by an acting chief justice. The head of an institution was to be given some protection to keep solidarity of that institution. Therefore, the chief justice must have also been protected from the SJC and the full court should try him in any reference against him, he said.
