ISLAMABAD, July 17: The Supreme Court on Tuesday grappled with the question why the Supreme Judicial Council (SJC) had restrained Chief Justice Iftikhar Mohammad Chaudhry ex parte in the dead of night not realising that by doing so it was also depriving a judge of his honour, respect, name and whatever he had.
Even when dealing with the case of Mohammad Din (euphemism for commoners), courts always gave prior notice to him, but here no notice was issued to the CJ before passing the restraining order, observed Justice Khalil-ur-Rehman Ramday, who is heading a 13-member larger bench hearing a petition filed by Justice Iftikhar challenging the presidential reference against him.
The bench was interested to know from Attorney-General Makhdoom Ali Khan, who was on the rostrum advancing his arguments, what actually transpired on March 9 when the SJC was convened immediately after the oath-taking ceremony of the acting chief justice and flying one of its members from Karachi in a special aircraft to the capital and what was the emergency to convene the meeting ‘in the dark of the night’.
All during the hearing, the AG faced a volley of questions from the bench, but he answered some and avoided many. Having the option either to answer the query or remain silent, the AG preferred the latter.
This led Barrister Aitzaz Ahsan, the lead counsel of the CJ, to conclude that the AG by demonstrating congressional silence had also participated in operation silence.
Justice Ramday observed: We would not like to scratch many things for our own sake and because personalities were involved in the matter, but one really failed to understand who really convened the SJC meeting and how immediately its members were flown to the capital city.
He also read out the SJC orders and expressed his surprise over the language used while restraining the CJ. We are in a fix, but nobody tells us anything. It’s a mystery, he said.
A judge is being suspended and no-one has the courtesy even to ask him at least on telephone whether he would like to proceed on leave, Justice Ramday observed, adding that interim orders were always meant for a few days, but here a final order had been issued without giving the CJ opportunity to be heard.
The attorney-general, however, said that any order passed ex parte could be withdrawn, contending it was not possible for him to explain why and how the meeting had been convened because he was not aware about it.
The bench was specifically concerned about the protection and security of tenure of judges and illustrated an example wherein the president sent any judge on forced leave by forwarding to the SJC a two-line reference against him.
Where are his protection, security and independence of the judiciary, the bench asked. Where will the judiciary stand and is there any remedy for all this?
When the opinion of the AG was sought on the presence of some members of the council if their bias was evident against a judge on trial, the AG said that his response would be as prejudicial as the finding of the apex court against those members.
AG Makhdoom concluded his arguments emphasising that the president had passed the restraining orders against the CJ in exercise of the executive powers he enjoyed, although no specific power had been given to him under the Constitution in this regard.
The president had used incidental powers while passing the restraining orders against the CJ, he said. Similarly, Presidential Order (PO) 27 under which the CJ was sent on a compulsory leave on March 15 was a valid law and provided authority to the president to send a judge on forced leave. Till the law was not struck down, the PO-27 would be presumed as a valid law, the AG argued.
Referring to in-camera proceedings of the council, he said there was no hard and fast rule, but the paramount interest should be to ensure justice.
If a person under trial desires open trial he should be honoured. However, the final decision in this regard rests with the presiding officer who should decide keeping in view the situation, he said.
On bias among members of the SJC, he contended that judges were the judge of their own biasness, but the court should balance competing interest.
Earlier, Justice Ramday referred to an interim report of the director-general of the Intelligence Bureau in which he had said that technical sweeping of bugging devices in the Supreme Court building and homes of judges in Islamabad had been completed.
On the request of the IB director-general one more week was given to carry out similar exercise at the residences and chambers of judges of four high courts.
Meanwhile, the Supreme Court asked the government to compensate state-appointed Advocate-on-Record Chaudhry Akhtar Ali the licence of whom was suspended by the court on finding some highly ‘scandalous’ material both against the chief justice as well as judges in the presidential reference placed before the bench by the federation.