Judiciary turns the corner: • SC voids presidential reference against CJ • First verdict against a military ruler
ISLAMABAD, July 20: In what has been billed as a defining moment in the country’s otherwise chequered judicial history, the Supreme Court on Friday struck down the presidential reference against Chief Justice Iftikhar Mohammad Chaudhry and restored him to the seat of Pakistan’s top adjudicator.
The annulment of the presidential reference was a majority decision — 10 in favour and three against. Justice Faqir Mohammad Khokhar, Justice M. Javed Buttar and Justice Saiyed Saeed Ashhad dissented and will give the reasons later.
The bench ruled, in no uncertain terms, that the orders to suspend the chief justice, or to even send him on forced leave, and the appointment of an acting chief justice in the present situation were illegal.
It is the first time in the country’s history that the Supreme Court has ruled against a sitting military ruler.
The atmosphere inside the Court Number 1 was scintillating when Justice Ramday read out the short order. There was a pin-drop silence as scores of lawyers, supporters of the chief justice and journalists heard the verdict in a packed courtroom.
And the moment the bench rose for the day, the courtroom burst into a thunderous applause, which later turned into celebrations as the chief justice’s supporters walked out to join a much bigger crowd of lawyers at the gates of the Supreme Court.
And all this was not without reason. The judgment had left no ambiguity as all the issues were addressed and ruled in favour of the chief justice.
“The petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same,” Justice Khalil-ur-Rehman Ramday read from a 10-page short order after closing 43 days of consecutive hearing in a courtroom swarming with people.
Soon after the verdict, the CJ assumed the charge of his office after 134 days of suspension by President Pervez Musharraf on March 9 for misusing his office and subsequent filing of the reference, also endorsed by the Supreme Judicial Commission (SJC) the same day.
Senior advocate Sharifuddin Pirzada, the legal counsel to the president, Attorney-General Makhdoom Ali Khan and the government’s lead counsel, Malik Mohammad Qayyum, were conspicuous by their absence from the room when the judgment came.
“President Musharraf should have resigned much earlier, but now he owes an apology to the nation for all the tension and unrest in the country,” Asma Jehangir, chairperson of the Human Rights Commission of Pakistan (HRCP), said while talking to Dawn. “It is now a clear divide between the civilians and the military.”
“The verdict is more than our expectations,” said Sarfaraz, a man who rushed to the apex court after the judgment to take part in the celebrations. “The crisis, which started on a Friday when the CJ was suspended by the president on March 9, also ended on a Friday.” Supreme Court Bar Council President Munir A. Malik described the decision as an outcome of the lawyers’ historic struggle. “Today we have seen the birth of a new Supreme Court that has shown great vision and courage to lay the foundations of an independent judiciary,” he said.
“It is a great day,” said Aitzaz Ahsan, the CJ’s lead counsel, in his brief comments, adding he would express his views in detail from the platform of the PBC or his party.
Senior lawyer Ali Ahmad Kurd said that lawyers’ struggle would continue till the time ‘we get rid of President Musharraf’. “If the lawyers and the nation get united, nobody would ever have the courage to impose martial law in the country,” he said.
“This is a day I believe Pakistan is my country,” said Tariq Mehmood, a lawyer in the CJ’s panel, outside the court. He said from the very beginning ‘we had a very strong case, although the Lal Masjid issue diverted attention from it a bit, yet we emerged victorious.”
Roedad Khan, a former bureaucrat and campaigner for the restoration of the chief justice, was of the view that the Supreme Court had been reborn as a result of this verdict.
He said it clearly meant that the `judiciary has broken all links with the military establishment and has honoured the aspirations of the people’.
Former chief justice Saeed-uz-Zaman Siddiqui interpreted it differently. He was of the view that like always, judges had applied their own mind in handing down the verdict, but perhaps the public campaign against the presidential reference helped the judiciary in thinking independently and without any pressure.
Declaring the CJ’s petition maintainable, the bench held the judges (compulsory leave) order, President’s Order No 27 of 1970, to be ultra vires. Therefore, the March 15 order of sending the CJ on compulsory leave also was held to be without lawful authority.
The court unanimously set aside both the orders of the president as well as of the SJC restraining the CJ from carrying out his duties, explaining that in view of the minority opinion that the reference was competently filed by the president, therefore, the Supreme Court could pass a restraining order under Article 184(3) (jurisdiction of the court under fundamental rights) read with Article 187 (issue and execution of process of the Supreme Court) of the Constitution.
On the appointment of Justice Javed Iqbal as Acting Chief Justice on March 9 and Justice Rana Bhagwandas on March 22, the court ruled that their appointments were illegal, but this would not affect ordinary working of the Supreme Court or the discharge of any other constitutional or legal obligations by the ACJs during the period in question under the de facto doctrine.
Earlier before rising to hand down the judgment, Justice Khalil-ur-Rehman Ramday observed that it would be the endeavour of the court to let people and the country come out victorious as `individuals really mean nothing to us’.
“May Allah guide us to give an order that should prove to be blessing for the nation,” Justice Ramday prayed.
He criticised an `irresponsible statement’ by a `very responsible person’ that the `real tussle’ was between the judiciary and the armed forces.
“This is most unfortunate as all these institutions are very precious and very dear to us. Each one of these institutions is indispensable for the existence of this country,” Justice Ramday observed.
“Putting these institutions on a warpath is highly deplorable as we are not competing with each other but supplementing. The job of the judiciary is very different from other institutions,” he said.
“We are healers and soothers. People come to us with irritants and we remove their irritants by offering peace to the ones who suffered the most. The judiciary is not here to monitor or supervise but to supplement towards the national goals and objectives,” Justice Ramday concluded.