Counsel for the CJP, Aitzaz Ahsan Tuesday challenged the validity of the notifications issued for suspension of Chief Justice Iftikhar Mohammad Chaudhry, appointment of Justice Javed Iqbal as Acting Chief Justice, convening of Supreme Judicial Council and the restraint orders passed by the SJC on 9th March 2007 in ahaste.
Continuing his submissions before the Full Supreme Court on the CJP petition the counsel said under Article 209 of the Constitution, the President can file a reference against a Judge in the SJC but he has got no constitutional or inherent powers to suspend, restrain or send a Judge on forced leave.
"The Prime Minister had also not given an advice to the President for the suspension of the Chief Justice before or after filing the reference" he added.
Secondly, he said, since the CJP cannot be suspended or sent on forced leave under any law, therefore appointment of an acting Chief Justice in the presence of the CJ is also illegal under Article 180 of the Constitution.
Thirdly, he maintained. the SJC is just an inquiry body with no powers of a court to restrain the CJ to perform functions as Judge or as the Chief Justice of Pakistan.
He said the SJC passed this order on 9/3/07 even without issuing a notice to the CJP whereas the government had also not made any application to SJC to pass such an order. He argued that as head of the state, the President is expected to be neutral, dispassionate, and non-partisan in national matters.
"When on the advice of the Prime Minister, the President sends a reference against a Judge to the SJC, he should dispassionately wait for the inquiry report of the SJC and act accordingly."
But here, Aitzaz contended, the President has become a party, taken an adversarial position and has engaged an army of lawyers on exorbitant fees to be paid from the national exchequer to pursue the reference against the CJP in the SJC and the Full Supreme Court.
He alleged that Referring Authority (President) instead of neutrality, has taken an unreasonably feverish partisan position which is not in the public interest.
He said that Justice Iftikhar was called to the Rawalpindi Army Camp Office of the President on 9/3/07 and was pressurised to resign from his office otherwise a reference against will be filed in the SJC. He maintained that the law does not permit any dealing / communication between the Executive and the Judge when reference is being filed.
The head of the Full Court Justice Khalilur Rehman Ramday advised the lead counsel from two sides to address the court on two point: " (i) Can the President call a Judge and (ii)what is the legal position if the President calls a Judge to tell him about the charges against him before sending the reference to the SJC for inquiry? Justice Faqir Mohammad Khokhar remarked "As head of the Parliament, the President can contact anyone"
Aitzaz replied " The Head of the Parliament does not have ultra constitutional powers and take any action" and added ' he should not remove the Judges on the reports of the Intelligence Agencies"
Justice Ramday said while deciding this petition, the court will lay down the law for formation of the President "opinion" that a Judge of the Supreme Court or High Court may have been guilty of misconduct and the reference against him should be sent to the SJC. Aitzaz suggested that President should send the reference to the Pakistan Bar Council to have its opinion before sending it to the SJC.
Justice Khokhar remarked "if removal of the Judges is left to the PBC, then would independence of the Judiciary not be affected" Justice Ramday probed "To some people self respect is very dear, therefore would it not be proper that the President should consult the Chief Justice to form his "opinion" before taking an action on the reference."
Aitzaz again narrated the events from 9th to 13th March when the CJ was restrained to perform his functions as Judge and Chief Justice of the Supreme Court, detained at his residence, made incommunicado to prove that all the seacts were malafide and personal vendetta of the President. Justice Khokhar asked the counsel whether he wanted to include post 9th March events in his submission.
Aitzaz replied in affirmative as Chief Minister Sindh had welcomed the reference while PML-Q President Chaudhry Shujaat Hussain described it as a "matter between the Army and the Judiciary"
Justice Ramday inquired "Did Chaudhry Shujaat Hussain make the statement that Reference is matter between Army and the Judiciary?" Aitzaz replied that CH. Shujaat made this statement in the United States on 13th March. Justice Faqir Mohamad Khokhar remarked "But Chaudhry Shujaat met the Chief Justice on 9th March."
Aitzaz told Chaudhry Shujaat Hussain met the CJ on 9/3/07 to convince him that his salvation lies in tendering his resignation. He said that the purpose of filing a reference against the CJP on the charges misconduct etc in the SJC was not to hold an honest inquiry into the charges but the President wanted to have a decision of his own choice.
Insisting on the malice and bonafide , Aitzaz said the CJ has addressed the Bar Associations but he has not said a single word about the reference yet on the contrary the President commented upon the reference in his speeches at public meetings in Gujranwala, Sialkot, Mansehra and Islamabad.
Justice Ramday probed if the CJ could be restrained from performing his functions, then appointment of an acting CJ would be legal, Aitzaz replied that mere filing of a Reference against a Judge in the SJC could not be made a legal basis for suspension of the Judge.
He cited several judgements of the British Privy Council and other Superior Courts which held that judicial powers of a Judge could not be encroached upon, snatched or withdrawn by any Authority without the laid down legal procedure.
Justice Khokhar observed that the Chief Justice, in addition to his judicial functions also has multifarious administrative functions which he has to perform for proper administration of justice in the country.
He said that notwithstanding other legal and constitutional grounds, malice malafide (bad faith) and collateral purpose of the referring authority is sufficient basis to dismiss the reference.
CJP lead counsel will continue his arguments on Wednesday. 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.
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