ISLAMABAD, May 14: The 14-member full court formed to rule on a set of identical petitions against the removal of Chief Justice Iftikhar Mohammad Chaudhry had a dramatic start here on Monday when one of the 14 judges declined to sit on the bench.
Justice Falak Sher startled the assembled full court by announcing that he would not sit on the bench by impliedly saying that his seniority was ignored at the time of appointment of the present chief justice of the Supreme Court.
This is the second such refusal by a judge of the Supreme Court to sit on the bench; the first being Justice Sardar Mohammad Raza Khan, on whose request Acting Chief Justice Rana Bhagwandas had formed a five-member larger bench to hear the petitions on the CJ issue. The 14-member full court was reconstituted on a request of the five-member larger bench.
On Monday, the ACJ again formed a 13-member larger bench to hear the petitions from Tuesday. Headed by Justice Khalilur Rehman Ramday, the larger bench will comprise Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Mian Shakirullah Jan, Justice M. Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Saiyed Saeed Ashhad, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed and Justice Syed Jamshed Ali and two ad hoc judges namely Justice Hamid Ali Mirza and Justice Ghulam Rabbani.
Before Barrister Aitzaz Ahsan could open his arguments to plead the case of the chief justice as his legal counsel, Justice Falak Sher, whose representation on seniority was also pending before the president, expressed his inability to sit on the bench and order reconstitution of the bench.
Overruling the usual practice of dictating orders by a presiding judge, Justice Sher asked the court officer to write his orders stating: “On account of seniority and being the senior-most judge in the country, it would be improper for him to hear a case in which the chief justice is a party, who like other judges of the Supreme Court is junior to him from four to nine years.”
It would be in the fitness of things and as a duty to the nation of upholding the rule of law that he should not sit, lest any element of bias should come to his mind, he said.
“I am happy that nobody is happy with me,” Justice Falak Sher observed.
Later Justice (retd) Tariq Mehmood, also representing the chief justice before the SJC, told Dawn that Justice Sher was the senior-most judge when he was in the Lahore High Court but cited a 2000 Supreme Court Bar Association case in which it had been held by the Supreme Court that seniority had to be reckoned from the date of elevation as judges in the Supreme Court.
At the outset of Monday’s proceedings, former vice-chairman of the Pakistan Bar Council, Rasheed A. Razvi, also sought the court’s indulgence over the May 12 Karachi incidents when the main artery of the city was blocked through tankers and containers to refrain the chief justice from addressing the Sindh High Court Bar and requested the apex court to take action in this regard. Even judges of the high court were seen climbing the walls of the SHC building to enter their chambers, he said.
However, advocate Ahmad Raza Qasuri rushed to the rostrum shouting these were all lies and let them argue on constitutional provisions.
Supreme Court Bar Association president Muneer A. Malik and Hamid Khan also said the judiciary was intimidated and provincial authorities defied clear orders of the SHC to remove the blockades and ensure safety to the chief justice so he could address the high court bar. “The president of the high court bar told us to stay at the airport because they did not want to risk the lives of the chief justice or other lawyers.”
At this, Justice Ramday observed that it should be “our endeavour to keep our cool”, adding all eyes were set on the Supreme Court and one really shuddered to visualise over the consequences “if we fail in view of the present serious situation”.
Justice Sher also suggested to the petitioner’s counsel to move a proper application before the ACJ in this regard.