The counsel of Chief Justice, Aitzaz Ahsan, on Tuesday argued before the Supreme Court that it was the fundamental right of Justice Iftikhar Mohammad Chaudhry that his trial should be held by unbiased and those judges who are not direct beneficiary of his removal as Chief Justice of Pakistan.
In his petition, Justice Iftikhar had objected to sitting of two judges on the Supreme Judicial Council, hearing the reference against him, namely Justice Javed Iqbal, senior Judge of the Supreme, as a beneficiary of his removal, and Justice Iftikhar Hussain Chaudhry, CJ, Lahore High Court, for his alleged "personal animosity and bias" against petitioner.
Aitzaz did not read the allegations levelled by the Chief Justice in his petition against these two Judges in the open court but requested the members of the Bench to read them. The Presiding Judge of the Court, Justice Khalilur Rehman Ramday remarked that "if we do not keep the national interest above personal interest, then the system will not work."
He said: "Today, everybody criticises Justice Munir for validating General Ayub Khan's martial law, but the nation accepted his Constitution; politicians participated in the elections' took oath as Ministers of his cabinet; became ambassadors. So, it was not a mistake of Justice Munir alone but that of the whole nation."
Justice Ramday further observed that the Supreme Court gave only three years to General Pervez Musharraf, but instead of rejecting this decision, the nation gave him five years (through a referendum) and its representatives (Members of Parliament) passed the 17th amendment in the Constitution (to give blanket validation to all acts of General Musharraf as Chief Executive and President).
Aitzaz submitted: "We are all nude in this bathroom, and all the four Institutions of the State, namely Army, Judiciary, religious clergy, and politician are responsible for the present state of affairs."
He argued that if one says anything against the Army, "then the case of Javed Hashmi, MNA, is before us" (sentenced to several years imprisonment). If one says something against the Judiciary, he is straightaway sentenced to 6 months imprisonment. If one says something against the religious clergy, the mulla pronounces Fatwa of death against him. It is only the politician who is subjected to all kinds of stoning and criticism without any fear of repercussion.
Justice Mohammad Nawaz Abbasi observed that politicians create problems and the courts resolve them, but the politicians continue to create problems and bad situations. Aitzaz replied: "I am afraid of 6 months imprisonment (on contempt of the court). Therefore, I will not reply to this observation."
He quoted several judgements of national and foreign courts to prove if there was a charge of bias or other allegations against a judge, then it was not his discretion but he is disqualified to sit on the bench.
Justice Nasirul Mulk inquired whether he wanted to say if a Judge is a direct beneficiary of the outcome of the judgement, he too is disqualified to hear the case.
Aitzaz replied that this was exactly his case. Justice Nasirul Mulk added: "Bias and personal interest are two different matters." Justice Ramday observed: "A Judge should not hear a case if any party raises objection to his sitting on the bench; the judges should also act upon their judgements."
Aitzaz submitted that he had addressed the SJC on this issue for more than three days. Justice Ramday (in a lighter vein): "Whatsoever you do, it is a marathon."
Aitzaz argued that presence of the Chief Justice on the SJC is compulsory whereas other four members should be substituted.
Justice Javed Buttar observed: "When a sensitive constitutional issue is involved, hearing of the case by a Judge against whom a charge of personal bias is levelled, then this matter cannot be left to the conscience of that Judge."
Justice Faqir Mohammad Khokhar asked the counsel to quote a case where a judge was restrained from sitting on the bench on account of his personal bias etc.
Justice Buttar pointed out that in Bangladesh, three judges refused to sit on the bench with another Judge, who a day earlier, had had dinner with an official of the government. The Judge had to resign on that count.
Justice Abbasi (who along with Justice Khokhar had lunch with Sharifuddin Pirzada in Islamabad Club, which was much publicised in the newspapers) remarked: "But the lunch is taken in the broad daylight."
Aitzaz replied "I have not raised the issue of your having lunch with Sharifuddin Pirzada. But Pirzada should have taken care not to have lunch with you since he had made an application that the CJP petition should be heard by the Full Supreme Court.
Counsel for the Federation, Malik Mohammad Qayyum, rose and said: "Aitzaz is suffering from Sharifuddin Pirzada phobia; every now and then he brings up his name." Aitzaz retorted: "I have not said anything against you; and you should not defend him."
Qayyum : "Sharifuddin Pirzada is my teacher. I cannot defend him." Aitzaz: "We have our value system which teaches us to respect the elders and accordingly I respect Pirzada as an elder, but, we have to bear in mind who has always sided with the military dictators, guided them, prepared laws for them and forced the Judges to take new oaths, shunted them here and there."
Reverting to the question of personal interest, Aitzaz said that in Malik Assadullah's case in 1997 the then senior most Judge Justice Ajmal Mian declined to sit on the ten-member Full Supreme Court on the plea that if Justice Sajjad Ali Shah was removed as Chief Justice he was the direct beneficiary and would become Chief Justice of Pakistan.
He argued here in Justice Iftikhar Mohammad Chaudhry's case, Justice Javed Iqbal, a member of the SJC, would be a beneficiary since the senior most Judge Justice Rana Bhagwandas would retire in December 2007, and Justice Javed Iqbal would become Chief Justice in case Justice Iftikhar was removed.
Aitzaz also addressed the court on the question of camera trial of the CJP reference by SJC and said it was illegal, and even the President's counsel had admitted that if the Judge under trial wanted an open trial his request should be accepted.
Justice Ramday observed that Pirzada had said this in his personal capacity; the government might be having another stand on this issue, but added that so much had been said during the past two months, hardly anything had been left to hide.
Aitzaz argued the SJC rules, which call for in camera trial of the Judge were not made in pursuance of any Article of the constitution but they are administrative in nature to hear a private complaint and they do not apply to a reference made by the President .
Justice Ramday read rule 17, which said that if the charges levelled by a person against the Judge are proved baseless, then that person would be punished. Aitzaz assured the court that he would complete his arguments on Wednesday after which the Federation's counsel could make their submissions on the merit of the case.
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.