ISLAMABAD The Supreme Court released on Wednesday its detailed judgment that had restored Chief Justice Iftikhar Mohammad Chaudhry to his office in July 2007.

It held that the mode employed by then president Pervez Musharraf to dismiss the chief justice on March 9, 2007, had insulted the Constitution and was clearly mala fide and unsustainable in law and, therefore, impermissible.

“We are of the opinion that such a mode employed to oust a judge was an insult inflicted on the Constitution; was an offensive abuse of the same for a collateral purpose; was clearly mala fide and could not be sustained in law or permitted to be continued,” said the judgment, released after 29 months.

On July 20, 2007, a 13-judge bench, headed by Justice Khalilur Rehman Ramday, had struck down the presidential reference against the chief justice and restored him to the seat of the top adjudicator.

The petition was filed by Justice Iftikhar Chaudhry.

A 199-page judgment quashed the reference sent by the former president to the Supreme Judicial Council against the chief justice on misconduct and said the office of the chief justice had never become vacant on March 9, 2007.

Therefore, no room existed for the appointment of an acting chief justice since the chief justice was not absent or unable to perform the functions of his office.

Justice Chaudhry Ijaz Ahmed, a member of the 13-judge bench, also gave a separate note agreeing with the verdict, while Justice Mohammad Nawaz Abbasi will add a separate note later.

Authored by Justice Ramday, the detailed verdict also declared against the Constitution the Judges (Compulsory Leave) Order (President's Order No 27 of 1970) that gave unbridled powers to the executive to require a judge to proceed on leave only because a reference had been made by the president calling upon the SJC to inquire into the capacity or the conduct of such a judge.

Thus, the March 15, 2007, order of then president ordering the chief justice to go on compulsory leave from March 9 till submission of the report of the SJC was set aside as being illegal and of no legal effect, the order said.

It said “The constitution confers no power on anyone, including the president, to suspend a judge of a superior court, leave alone the chief justice, or to restrain him from acting as such.

“The president can exercise only those powers which stand specifically conferred on him by the Constitution and that he is not possessed of any inherent, incidental, implicit or ancillary powers in the matter in question.

“Consequently it is declared that March 9 order was an order passed without jurisdiction; was offensive of the constitutional provisions guaranteeing security of office of the chief justice its tenure and of the independence of judiciary and was thus ultra vires of the Constitution.

“It is also declared that in view of the facts and circumstances the March 9 order was an order passed for a collateral purpose i.e. elimination of the petitioner from the judicial scene and could not be sustained as a bona fide exercise of power.”

Setting aside the March 9, 2007, order of the SJC, the judgment said “The way it was convened in an enigmatic manner and the undue haste exhibited by the council, the unprecedented time at which the council met with no explanation, the unfathomable and perplexing mode in which the presence and availability of two members of the council from Karachi and Lahore was secured could not said to be a bona fide exercise of powers.”

The verdict disapproved and expressed displeasure over the March 12, 2007, statement by the then prime minister that the matter regarding the chief justice was an internal matter between the army and the judiciary.

“It is a naive attempt to create a wedge between two important and indispensable arms of the state and to put them on a war path,” the judgment said, adding “What was in question before us was an act of the president and it was just an accident or a coincidence that the former president who also happened to be the Chief of the Army Staff. The matter had nothing to do with the army as an institution. Needless to add that the army is an invaluable organ and instrument of the state and is as precious to us all as any other institution of our homeland.”

The verdict also noted that hearing of the case had commenced in a tense atmosphere charged with emotions, anger and anguish.

It said “Before us, stood pitched against each other, the president of Pakistan who also happened to be the army chief on one hand, and the chief justice of Pakistan, on the other.

“Two days before this bench was to commence hearing of this case, the most populous city of the country had witnessed an unprecedented bloodbath in connection with this very issue in which tens of innocent lives had been lost.

“In the early hours of the very day on which this bench was to assemble to start hearing of these petitions, an additional registrar of this court who had also been serving as staff officer of the petitioner was killed in his house in cold blood.

“The angry protesters were being baton-charged and shelled on almost daily basis. In fact on one of the processions taken out by the District Bar Association of Sahiwal, police had even sprayed burning oil and quite a few lawyers had, as a result, got rather badly burnt. While this case was nearing its conclusion, in fact three days before we announced the short judgment, there was a bomb explosion in a meeting of the Islamabad Bar.”