ISLAMABAD, June 21: The counsel for Chief Justice Iftikhar Mohammad Chaudhry on Thursday said that events of March 9, appointment of the Acting Chief Justice and convening of the Supreme Judicial Council in an ‘unholy haste’ amounted to a coup in the Supreme Court and an extension to the executive’s ‘conspiracy’ to topple the CJ.
“Why could the chief justice not be invited to the SJC (which endorsed the president’s decision to restrain the CJ from functioning) when he (CJ) was only five minutes’ drive away from the Supreme Court building,” asked Barrister Aitzaz Ahsan. He was arguing before a 13-member larger bench hearing a petition filed by the chief justice.
“The March 9 meeting of the SJC was totally illegal and could not have been convened by the ACJ even if his appointment was valid,” he said.
At this, Advocate Malik Mohammad Qayyum, representing the federal government, reached the rostrum to ask: “If this was a coup then coup by whom: either by the executive or by someone else.”
Barrister Ahsan deplored that despite 42 references pending before the SJC against different judges of superior courts, the council passionately pursued the reference against the CJ. “Action against the CJ is discriminatory because the reference against him bears serial No 43 of 2007, which means 42 references are already pending against different judges,” the counsel argued.
“Then where are the other references,” Justice Khalilur Rehman Ramday, the presiding judge, asked.
“This is the question I want to put before your lordship as to why the chief justice is being prosecuted in an unholy haste and in a mala fide manner,” Barrister Ahsan asked. He said so far only one reference, against Justice Shaikh Shaukat, had been taken up by the council while the rest were not touched.
Justice Mohammad Nawaz Abbasi observed that those references might have been simple complaints against judges and not presidential references. This prompted Barrister Ahsan to ask: “What does it mean? Will those complaints be never taken up or heard for adjudication?”
No other judge had been dealt with such haste by the council like the CJ and the manner in which the SJC proceeded without even bothering to find the whereabouts and wellbeing of their own colleague who was under detention cast deep shadow of impropriety on its proceedings, Barrister Ahsan said. “And the restraining order of the council against the CJ proved that the first order by the president was not a valid and legal one,” he explained.
Barrister Ahsan recalled that in a meeting with a British diplomat he had asked what would have happened if a constable manhandled the Lord Chief Justice of Britain (an obvious reference to the manhandling of the CJ by the Islamabad police on March 13). Prime Minister Tony Blair would have resigned within half an hour was the reply of the diplomat, Barrister
Ahsan said. “These are the traditions.”
He described the affidavits submitted by the chief of staff to the president as false, based on hearsay and aimed at maligning the CJ.
He recalled that the president in an interview had admitted that the CJ was under detention and his telephones were cut off by some officers.
The president also admitted that materials for the reference had been collected from intelligence agencies which had nothing to do with snooping on judges.
Barrister Ahsan described the PO 27 (Judges Compulsory Leave Order) under which the CJ was sent on forced leave on March 15 as unconstitutional since it was introduced by a dictator (Gen Yahya Khan), and said that judges were always humiliated during the military rule.
“Had I been the AG, I would have loathed over the distasteful order endeavouring to encroach upon the independence of the judiciary,” he said.
At this, Justice M. Javed Buttar observed: “We have great traditions and many who called themselves great jurists have the honour of authoring the Constitution given by military dictators.”
“But without a chapter on fundamental rights,” Aitzaz Ahsan said and asked what was the necessity of sending the CJ on forced leave if the earlier orders of restraining the CJ were valid. “This shows that the earlier retraining orders were illegal and ineffective.”
In this way, the president also admitted through his conduct that the order of the appointment of the ACJ was also invalid and illegal and, therefore, the convening of the SJC was also illegal, he argued.
Barrister Ahsan said calls made from a mobile phone as mentioned in the affidavit of the chief of staff to the president belonged to the son of the CJ who was in Lahore.
At this, Malik Qayyum informed the court that the government had checked that the calls were made through the tower in Sector F-6/3 (Islamabad), meaning the cellphone was with the CJ at his residence.
“With this claim, the federal government accepts that the CJ was held incommunicado and other phone lines were blocked,” Barrister Ahsan said.