ISLAMABAD, June 19: The counsel for Chief Justice Iftikhar Mohammad Chaudhry on Tuesday requested the Supreme Court to rein in intelligence agencies used by the executive authorities to ‘control’ independent judges otherwise every ‘judge of conscience’ would feel threatened.

Arguing before a 13-member larger bench hearing a petition of the chief justice, Barrister Aitzaz Ahsan accused President Gen Musharraf of having relied entirely on report of chiefs of intelligence agencies while taking action against the CJ on March 9.

“What is the role of intelligence agencies in the affairs of the judiciary,” the counsel asked and observed: “It revolts and jolts my mind that a member of the judiciary is removed on the information of intelligence agencies who know nothing about law and the Constitution.”

Once finalised, he said, the reference should not be brought to the notice of the respondent judge by the executive authority since it would militate the course of independence of justice and could become a vehicle to put pressure on a judge.

The referring authority (president) had no legitimate pretext to discuss the reference with the petitioner before it was finally filed, he said, adding that an executive authority could not seek resignation from a judge as it would be in violation of the spirit of article 209 of the Constitution.

Justice Khalilur Rehman Ramday, who is heading the larger bench, observed that there should be no harm if the referring authority discussed the complaint with the respondent judge instead of making it pubic at the very outset.

“You are talking about an ideal situation,” Barrister Ahsan replied, adding that here no ideal executive would come and the intelligence agencies would continue to spy on judges.

“The present situation is that telephones of the judges are being bugged; their activities and social contacts are being monitored and independent judges are being exploited on the basis of intelligence reports.”

Many judges would “mend their ways” but this was not the way to uphold the independence of the judiciary, Barrister Ahsan said and suggested placing of more filters in the process of removing judges.

The counsel argued that the office of the CJ was purely a judicial institution and any restraint order against him would amount to his removal. “Mere filing of the reference does not render a judge ineffective and cannot be restrained from working his constitutional duty.”

He said the president was the prime respondent in the petition of the CJ, but he was making statements that he would weep if the court gave an adverse judgment in the case. “It is a direct statement to influence the court,” he said.

Barrister Ahsan argued that if this court arrived at a conclusion that there was an iota of malice, mala fide and dishonesty, then the action of the president under article 209(5) should be declared illegal and the reference be declared unlawful.

He said the president did not file the reference with impartial or dispassionate mind as whatever was done on March 9 and the next few days could only have been sanctioned by the highest authority. Therefore, these could be attributed only to the president who should take complete responsibility for all these acts like a soldier and a man, he argued.

Similarly, whatever had been done between March 9 and 16, including detention, cutting of telephones and television cable, removal of cars and servants and manhandling of the CJ, was illegal and illustrated the mala fide intent of the president, he said.

Barrister Ahsan said the president was not and continued to be not completely disinterested in the outcome of the CJ petition and, on the contrary, had established an intensely partisan adversarial posture.

The president, he said, also did not appear to be calmly waiting for the report from the Supreme Judicial Council with a completely dispassionate mind -- to act slowly, deliberately, impartially and with utmost care before performing his duty to remove the CJ on the report of the SJC. On the contrary, he argued, the president had addressed public rallies of one particular political party and spoken his mind publicly about the reference in Gujranwala, Sialkot, Mansehra and Islamabad and made suggestive statement to affect the proceedings of the case.

Referring to the March 9 restraining orders, he said these had been issued by both the president as well as the SJC on the premise that the reference had been filed and that its mere filing justified as well as necessitated restraining the CJ from functioning.



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