The Supreme Court on Wednesday termed an "insult to constitution" the method the then President Pervez Musharraf employed to sack Chief Justice Iftikhar Muhammad Chaudhry in March 2007, a move that motivated thousands of lawyers and members of civil society to rally against the then president.
In the verdict of July 20, 2007 that had restored Justice Chaudhry the court held that the mode adopted by former president was clearly malafide and unsustained in law. "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 malafide and could not be sustained in law or permitted to be continued," the judgement said.
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 had restored him to the seat of Pakistan's top adjudicator.
In its short order the court had quashed the reference sent by former president to the Supreme Judicial Council (SJC) against the chief justice on misconduct and said the office of the chief justice had not 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.
The petition was heard by the bench comprising Justice Khalil-ur-Rehman Ramday, Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokhar, Justice Mian Shakirullah Jan, Justice M Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Saiyed Saeed Ashhad, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Syed Jamshed Ali, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.
But the detailed reasons have been signed by Justice Ramday, Justice Mian Shakirullah Jan, Justice Tassaduq Hussain Jillani, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Chaudhry Ijaz Ahmed, Justice Ghulam Rabbani and three retired judges namely former Justice Muhammad Nawaz Abbasi, former Justice Syed Jamshed Ali and former Justice Hamid Ali Mirza. While agreeing with detailed judgement Justice Chaudhry Ijaz Ahmed has also given a separate note and similarly agreeing with the judgement while Justice Muhammad Nawaz Abbasi will also add a separate note.
Authored by Justice Ramday the verdict also declared the Judges (Compulsory Leave) Order being 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 enquire into the capacity or the conduct of such a judge against the constitution.
Thus the March 15, 2007 order of the then president commanding the chief justice to go on compulsory leave from March 9, 2007 till submission of the report of the SJC was also set aside as being illegal and of no legal effect, the order said. The constitution conferred 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, Justice Ramday observed.
The President could exercise only those powers which stood specifically conferred on him by the constitution and that he was 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 noticed above, the said impugned order was an order passed for a collateral purpose ie elimination of the petitioner from the judicial scene and could not be sustained as a bonafide exercise of power.
It also set aside March 9, 2007 orders of SJC by stating the way it was convened in an enigmatic manner, the un-due haste exhibited by the council, the unprecedented time at which the council met with no explanation, the unfathomable and the perplexing mode in which the presence and availability of the two members of the council from Karachi and Lahore was secured could not be 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 in which he had said the matter regarding the chief justice was an internal matter between the army and the judiciary, the verdict held it a naive attempt to create a wedge between two important and indispensable arms of the state and to put them on a warpath.
"What was in question before us was an act of the president and it was just an accident or a coincidence that the said President also happened to be the Chief of Army Staff," it said adding the matter had nothing to do with the army as an institution. Needless to add that the army was an invaluable organ and instrument of the state and was as precious to us all as any other institution of our homeland, it said.
The verdict also noted that the hearing of the case had commenced in a rather charged atmosphere chocked with emotions, anger and anguish. 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, it said.
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 the staff officer of the petitioner was killed in his house in cold blood.
The angry protesting processionists 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, the 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 judgement, there was a bomb explosion in a meeting of the Islamabad Bar, the judgement noted.
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