ISLAMABAD, April 18: Chief Justice Mr Justice Iftikhar Mohammad Chaudhry on Wednesday filed a constitutional petition in the Supreme Court challenging President Pervez Musharraf's move to file a reference against him.
A three-member bench will take up the petition on Thursday.
Never before in the country's history has an incumbent chief justice filed a petition in his own court to defend his position in the wake of a judicial or administrative action.
In a clear demonstration that these were unusual times for the judiciary, Justice Iftikhar Chaudhry filed the petition through his counsel on a day when his fate as the highest adjudicator was being discussed by the Supreme Judicial Council (SJC) in the same premises, but not in a court room.
The petition was filed after the SJC rejected a request by the defence team seeking a decision on questions of bias levelled by it against three members of the SJC.
The same bench is already hearing five similar petitions, including a challenge that under Article 209 of the Constitution, that no reference can be filed against the sitting chief justice.
Pakistan Bar Council, the Supreme Court Bar Association and the Lahore High Court Bar Association plan to file petitions on these issues on Thursday.
Filed by Barrister Aitzaz Ahsan and Gohar Ali Khan on behalf of the Chief Justice, the petition raised 132 questions on the competence of the SJC to try the Chief Justice. These include: constitution of the Supreme Judicial Council without the CJP, the personal bias and prospects of advancement of some members of the council, alleged mala fide of the referring authority and Prime Minister Shaukat Aziz, the haste with which the referring authority (the president) acted against the CJP, illegal suspension and forced leave, illegal assumption of office by the Acting Chief Justice, the executive assault on the independence of judiciary and in-camera proceedings of the SJC.
The petition has been divided into four sections -- questions of law, the facts of the case, the grounds for the petition, and the relief being sought.
The petitioner has also narrated salient events of his career as the CJP, including events of March 9.
Justice Iftikhar Chaudhry said in the petition that he incurred the displeasure of the president, the prime minister and their associates as he took up 6,000 cases of human rights abuses.
Denying charges levelled against him in the reference, the petitioner called for an open public trial by an impartial, un-biased and legally competent forum with full opportunity to obtain the record required for his defence.
He also requested the court to declare that no reference could be filed by the referring authority or examined by the SJC against the CJP under Article 209 of the Constitution.
Likewise, the council could also not inquire into the CJ’s conduct or try him.
He also requested the top court to declare that the SJC could not be lawfully constituted in the absence of the CJP and that an acting chief justice could not preside over the council.
The petitioner also asked the court to hold that the reference filed against him was mala fide and for a collateral purpose, and that the orders purporting to restrain the petitioner from performing his functions or purporting to send him on forced leave were without lawful authority.
Justice Iftikhar requested the Supreme Court to restrain the council from hearing the reference as some members harbour bias against the petitioner, rendering them inelligible to be a member of the SJC.
The Supreme Court was also asked to declare that the SJC’s decision to hear the case in camera was against the constitution and it would violate the fundamental rights, and amount to a travesty of justice and fair-play.