ISLAMABAD, July 19: The lead counsel of Chief Justice Iftikhar Mohammad Chaudhry on Thursday described the reference against the CJ as the “mother of all evils” which would continue to create instability unless squashed completely.
Barrister Aitzaz Ahsan opposed the reference by terming it ‘malicious’ on a clear indication that the bench was going to hand down a judgment on Friday.
Mr Ahsan will conclude his reply before the 13-member Supreme Court bench, hearing the CJ’s challenge to the reference against him, to the points raised by the government counsel after which the bench is likely to close its 42-day-long hearing with a short order.
“I would seek summoning of the president and the prime minister before the Supreme Judicial Council (SJC) for cross-examination, if the reference was referred to the council and if (that request is) refused, the CJ would again be coming to his own court by filing another petition,” Barrister Ahsan.
Justice Khalil-ur-Rehman Ramday, who heads the bench, as usual lightened the heavy air in the courtroom during the hearing by asking Mr Ahsan whether or not the vehicle in which he took the CJ on long journeys had the facility of a toilet.
“You will not believe that we travelled for over 26 hours without any toilet facility in the scorching hot weather and that too when the air-conditioning system of the car had broken down,” Mr Ahsan replied.
The observation of Justice Ramday followed his remarks in which he said the way he was being quoted in the press would precipitate in his exit and he might join Mr Ahsan and a bus should be arranged.
“No, I will buy another jeep for you,” Mr Ahsan replied.
Mr Ahsan requested the court that the reference prepared by the intelligence agencies contained overwhelming and undeniable series of facts to establish collateral purpose and malice, besides no application of mind was applied both by the president and the prime minister before filing it.
Referring to the affidavits filed by Chief of Staff to the President Lt-Gen (retd) Hamid Javaid and the heads of two intelligence agencies, Barrister Ahsan said that these sworn statements conceded that charges and evidence had been discussed on March 9 during the meeting between the president and the CJ in the presence of the intelligence agency chiefs. And when the president departed, the CJ was left behind with the reference and the intelligence chiefs discussed the option of resignation with him, he said.
Barrister Ahsan was of the view that a pre-meditated plan A had been initiated when the CJ was called by the president at the Rawalpindi Camp Office to secure the resignation of the CJ, which was refused.
And when this plan had failed at 2pm on March 9, the agency chiefs hurriedly implemented the plan B in an unholy haste and launched an extra-judicial coup to take over the Supreme Court from the lawful CJ, he alleged. “Even the CJ was taken to his official residence from the camp office in custody that too after the acting chief justice took over the Supreme Court.”
He said that along with his entire family, the CJ had been detained for four days in his house which the entire world saw and even the president in an interview to a private TV channel admitted that his (CJ) telephone lines had been cut. “This shows the malice on his (CJ) refusal to resign. This is vindictive.”
A hurriedly made draft of the reference was then pulled up under the plan B and sent to the council within three hours after the president left the meeting, he contended.
On sending the judge on leave facing a reference, Barrister Ahsan requested the bench to come up with some solution on the administrative side, otherwise its decision would continue to be used by the executive as a weapon like the 1970s, 80s and 90s when the judiciary had been pitted against the executive.
Citing different articles of the Constitution, he said the CJ, who heads the meeting of the SJC, could not be substituted by any judge and without him the council would not be a properly constituted body.
If the matter of disqualification of the CJ on conduct could not be addressed under the ambit of Article 209 (SJC), then remedy lies in the full court comprising available and willing judges, he suggested.
Barrister Ahsan was of the view that opinion before sending the reference should be formed by both the president and the prime minister, adding that the president was not bound on advice of the prime minister on judicial matters.
About the restraining orders, he said that since the president had no power to remove a judge before an adverse report from the council, therefore, he also had no incidental power to restrain or send a judge on compulsory leave.
