Supreme Court summons record of SJC proceedings

The Full Supreme Court on Wednesday summoned record of the stalled proceedings of the Supreme Judicial Council in the case of presidential reference against the Chief Justice and examined written complaint of Justice Iftikhar Mohammad Chaudhry dated March 10, 2007 that he was under detention at his residence and wanted to meet his colleagues.
The court took this decision when lead counsel for the Chief Justice, Aitezaz Ahsan in his factual narration stated that CJ wrote on the back of SJC notice dated 10th March that he was under detention with his family members, including his infant child of 7 years and he was incommunicado.
He said that the CJP also filed an application in the SJC on March 13, 2007, which stated "on account of deployment of heavy contingencies, I am not allowed to go outside nor my family members are allowed to do so, similarly no one is allowed to meet me freely."
He said that even SJC had to pass orders on 13th March and 16th March that the panel of lawyers representing the Chief Justice be provided free access to the respondent.
He argued that Attorney General asked the Chief Justice to meet his lawyers for only half an hour for consultation on the Reference, which had not been provided to him. Justice Mohammad Nawaz Abbasi reminded the counsel that four Judges of the Supreme Court met with the CJ during this period.
Presiding Judge of the Full Supreme Court Justice Khalilur Rehman clarified that he was not one of those judges, who met the CJ in those days. Aitzaz stated that even President Pervez Musharraf acknowledged in his interviews with Kamran Khan of Geo and Talat Hussain of AAJ TV that the government committed tactical mistakes and the CJ was manhandled.
He showed some press photographs of 13th March depicting manhandling of the Chief Justice. He said in TV interviews Information Minister Durrani was honest enough to defend the government's decision to cut off CJP telephones, TV cables etc and deployment of security at his residence in Islamabad.
On the contrary, Aitzaz contended, that Chief of Staff of the President, retired Lieutenant General Hamid Javaid in his affidavit stated that Justice Iftikhar was not detained and everything was normal. On this Justice Ramday ordered Registrar of the court to bring in record of proceedings of the SJC for examination Full Supreme Court.
However, Counsel for the Federation, Malik Mohammad Qayyum and Ahmad Raza Kasuri objected to the summoning of in camera proceedings record of the SJC. They argued that the court could not summon this record until it decided question of maintainability of the CJP petition.
Justice Ramday over ruled the objection and remarked "nothing is confidential from the Supreme Court", after which Registrar of the Court presented the SJC record. Justice Ramday remarked "the court just wanted to see what CJ had written on the back of the SJC notice dated 10th March 2007."
Resuming his factual narration of the events, Aitzaz said that Chief Justices of Lahore and Sindh High Courts, who were members of the SJC, were brought in special flights on 9th March 2007. "The question is who paid expenses of these flights, Prime Minister or the President? he added.
Secondly, he stated that no prior notice was issued for convening a meeting of the SJC on 9th March whereas under the rules, Secretary of the SJC issues a formal notice for the SJC meeting. Aitzaz said that in its meeting on 9th March, the SJC issued an order to restrain the CJP to perform functions of his office as the CJ and as a Judge of the Supreme Court, whereas the President had already issued such a notification.
He said whereas SJC has no powers to restrain the CJP. The Acting Chief Justice also took oath of office without ascertaining as to where was the Chief Justice of Pakistan. He said he had a great respect for the Judges but look at the treatment given to CJ by SJC, which also rejected his application for his open trial.
Aitzaz said that even counsel for the President, Syed Sharifuddin Pirzada has conceded that it was a right of Judge to ask for an open trial, which could not be denied to him under the UN and International Conventions.
Counsel for the Federation Ahmad Raza Kasuri rose up to inquire from the court whether it has maintained the CJ petition since Aitzaz was referring to matters, which pertained to SJC proceedings. The Court asked Kasuri: "have you got instructions to raise this point" to which he replied "Yes."
The court asked the lead counsel, Sharifuddin Pirzada, as to what was his position to which he replied "I neither accept nor oppose this proposition." The court repeated this question to Attorney General Makhdoom Ali Khan, who replied: "the Court has already stated that the question of maintainability of the petition would be decided along with the merit of the case, therefore, let it be so.
Continuing his submissions, Aitzaz said, basically this petition concerns about the powers of the Executive and the Judiciary; how far the Executive could encroach upon the powers of the Judiciary. Justice Faqir Mohammad Khokhar asked Aitzaz" Isn't SJC also a court" to which he replied that though SJC is a judicature, yet it is not a court.
He said that action of the President to file a reference against the Chief Justice was illegal and mala fide on several grounds. First, there are so many glaring computer and typographical mistakes in the reference, which showed that neither the President, nor the Prime Minister or any senior official read the Reference against the Chief Justice before sending it to SJC on 9th March 2007.
He said that before sending a reference to the SJC, the President is to "form an opinion that a Judge may be guilty of misconduct" under Article 209 of the constitution.
He contended how can President form an opinion without reading the documents or verifying the authenticity of the allegations. He said that the President's counsel Pirzada has categorically stated that in the matters relating to Judiciary the President acts only on the advice of the Prime Minister and any action in his discretion was illegal.
He pointed out that in the reference the Prime Minister had not advised the President to suspend the CJP, therefore, suspension of CJ by the President was illegal. He further contended that the law ministry did not consult any senior lawyers like Shariffudin Pirzada in the preparation of the reference otherwise there would have not been such irregularities and unlawful acts.
He said in a published interview with Herald of April, Pirzada had admitted that he was not consulted before filing the Reference as he was not in Pakistan. "I am part of the government but I have no hand in it", Pirzada was quoted as saying.
On the other hand, Aitzaz pointed out that President said in a TV interview that Pirzada was consulted and he was on board all the way. On this, Justice Ramday remarked in a lighter mood: "So you want us to declare the Reference unconstitutional since Pirzada was not consulted."
(Every body in the packed courtroom including Sharifuddin Pirzada, Makhdoom Ali Khan and other government lawyers laughed at this remark). He summed up his arguments emphasising that "the president and the prime minister failed to form opinion as stipulated in the Constitution before sending the Reference to the SJC. Their acts are malafide in law as all procedures followed in such a short time, action is unreasonable, irrational and decision whimsical.
Earlier as the court reassembled after half an hour recess at 11.30 and before Aitzaz could resume his arguments, counsel for the Federation Ahmad Raza Kasuri came at the dais and started addressing the court.
He that the court platform was being used to malign and defame the President, who had emerged an able, dignified, strong leader of Pakistan on the international scene. He said that during the past seven years, President Musharraf had turned Pakistan into an economically strong and stable country but conspiracies were being hatched to destabilise the country.
He emphasised that the President had courageously and ably defended the national interests but he was being pressurised and asked by the foreign powers to do more in the international war against terrorism. Kasuri said that while the President was bearing the foreign pressure, he and the Army were being maligned and defamed.
Justice Ramday interrupted Kasuri and asked him to narrate one single instance when name of the Army was mentioned during the hearing of these petitions. He said: "We are regulating the proceedings of the court, either you point out when name of the Army was mentioned otherwise do not make accusations unsubstantiated."
Kasuri replied that he was talking in general terms that court platform was being wrongly used but foreign funds were being pumped into Pakistan for the lawyers' movement. Kasuri's accusation caused an uproar in the courtroom. Counsels of the Chief Justice, Aitzaz Ahmad, Hamid Khan and Justice Tariq Mahmood (Retd) came on the dais and asked Kasuri to register an FIR against them for receiving funds or they would register an FIR against him for making accusations.
Justice Ramday directed Kasuri to prove his allegations and file an affidavit in the court about pumping in of foreign funds for the lawyers movement or withdraw his allegations.
Another lead counsel of the President and the Federation Malik Mohammad Qayyum rose up to state that he and other counsel of the President and the Federation do not support the allegations of Kasuri and they dissociate themselves from such accusations. Justice Ramday advised Kasuri to withdraw his statement since his other colleagues on the panel are not siding with him.
Kasuri said that "my colleagues had asked me to make this statement, but now they are not siding with me."
"Since I have not stated that lawyers of the CJ are receiving foreign funds, and I made a general statement, therefore, I withdraw my statement," he added. Justice Ramday advised him to refrain from making such statements, which pollute environment of the court.
Tariq Mahmood stated that leaders of lawyers movement were fearless and they would continue their struggle for the independence of the judiciary till its success. He said the government had opened their files and using all tactics and pressures to defeat our ongoing unparalleled struggle.
Justice Mohammad Nawaz Abbasi said that no one should defame others and why the lawyers go to Geo programmes /discussions. Tariq Mahmood replied: "We do not participate in discussion programmes of private television channels for the publicity but highlight the national and constitution issues in the best interest of the country.
The court will continue its proceedings on Thursday. The 13-member full court headed by Justice Khalilur Rehman Ramday includes Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Mian Shakirullah Jan, Justice M Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Sayed Saeed Asshad, Justice Nasirul Malik, Justice Raja Fayyaz Ahmad, Justice Chaudhry Ejaz Ahmad, Justice Sayed Jamshed Ali and two ad hoc judges, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.