Re: Will someone stop this CJ from stirring up more trouble?
On the retreat](http://www.nation.com.pk/daily/july-2007/18/editorials1.php)
AS Chief Justice Iftikhar Muhammad Chaudhry’s case is heading for a close the federal government’s decision to withdraw the charges of judicial misconduct against him signals that the federation is on the retreat. Government lawyer Syed Sharifuddin Peerzada told the full court of the Supreme Court on Monday that he had been instructed by President Pervez Musharraf and Prime Minister Shaukat Aziz that paragraphs 34 and 36(g) of the reference might be deleted. The charges of judicial misconduct centred on claims that the CJP’s written verdicts in some cases were at variance with his verbal orders earlier announced in the open court. The deleted paragraphs state that two such cases have acquired “particular notoriety” and one of them even involves Rs 55 million. Chief Justice Chaudhry’s lead counsel Aitzaz Ahsan got it right when he said that the reference could not be withdrawn piecemeal, but should be rescinded completely. To Mr Ahsan’s assertion that the government had withdrawn the two paragraphs because they contained the names of two incumbent judges of the full court, Mr Justice Khalilur Rehman Ramday said the Bench could not stop the government from doing so.
The government’s latest move has, however, reduced the reference to the single allegation that the Chief Justice had misused his authority for securing a government job for his son and privileges for himself. But then a leading member of the legal team representing the federation is reported to have strongly objected to the idea of filing a reference against Chief Justice Chaudhry on such frivolous charges. This makes sense. In a country where people in power are obsessed with protocol and privileges and are used to bending or breaking laws to their benefit, the unmannerly removal of the top judge on the so-called charges of “misuse of authority” would obviously strengthen the perception that the whole process was mala fides as well as politically motivated. Mr Justice Tassaduq Hussain Gilani, a member of the Bench hearing the CJP’s reference, observed that the most serious allegation against any judge was always considered to be judicial misconduct, “which the government has withdrawn”.
** The abrupt dropping of the misconduct charges indicates that there has been some sort of realisation in the corridors of power that the reference against Chief Justice Chaudhry was seriously flawed. Now that the government has also shown readiness for removing from the Supreme Judicial Council those members who are accused of being biased against the CJP, the authorities would be well advised to resolve the ongoing judicial crisis by withdrawing the reference in totality, and pave the way for greater national reconciliation especially when the country is facing serious challenges.
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And here’s the latest on the court case:
AG fails to answer SC queries on reference**
By By Sohail Khan
ISLAMABAD: Attorney-General Makhdoom Ali Khan failed to answer a volley of questions asked by a full court of the Supreme Court on Tuesday on the convening of the Supreme Judicial Council meeting and the passing of the restraining orders against Chief Justice Iftikhar Muhammad Chaudhry.
“Who convened the meeting of the Supreme Judicial Council on 9th of March? What type of meeting was this? What was the emergency to convene the meeting in the dark and issue this order that deprived the chief justice of his all privileges and judicial powers,” Justice Ramday asked the attorney-general.
** However, the attorney-general failed to give a direct answer but said that whoever had convened the meeting was on the record. “Then who would tell us who convened the meeting. I cannot understand why the Supreme Judicial Council became a party to the petition,” Justice Ramday asked, adding that a person did not become chief justice in a day rather it took years to reach such a post.**
** He said that the restraining order was passed in haste with a single line order. “Look at the language used in the order, saying that you are directed not to work as the chief justice,” said Justice Ramday.
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Justice Buttar asked the attorney-general about the validity of the restraining order. He questioned as to why the restraining order was passed without giving notice to the chief justice or hearing him. “How can the judges of two high courts manage to attend the meeting of the council at a short notice and what was the requirement of issuing this order after passing the restraining order by the president?”
** The attorney-general, however, failed to answer any of these questions and said that such an order was subjected to notice. **Makhdoom, who completed his arguments on Tuesday, submitted that the Supreme Judicial Council had complete jurisdiction under Article 209 of the Constitution in respect of proceedings against the chief justice. He was of the view that the replacement of the chief justice in the council had also been provided in the Constitution.
He submitted that harmonious construction of the council would provide a proper replacement formula for the judges in the council, including the chief justice. He said in an extraordinary situation like this, the next senior judges of the Supreme Court could be included in the council for the trial of the chief justice. He said the report of the council was a form of an order for all practical purposes and it would be binding on the president.
On the restraining orders passed by the president, the attorney-general argued that it was passed in exercise of executive powers, however, there was no specific power given to him in the Constitution in this regard. But he added, the president used incidental powers, while passing the restraining order against the chief justice.
Makhdoom Ali Khan submitted that it was a valid law and provided power to the president to send a judge on forced leave. Till this order is struck down, it will be presumed as constitutional, he added.
On the issue of in-camera trial, the attorney-general submitted that there was no hard and fast rule in this regard and the paramount interest was to ensure justice. If an under-trial person desires open trial against him, he should be honoured, he added. However, he said that presiding officer of the court should take decision in this regard keeping the situation in view.
Earlier, Justice Ramday said that the director-general of the Intelligence Bureau had submitted an interim report that technical sweeping of bugging instruments in the Supreme Court building and residences of the judges in Islamabad had been completed. He said that on the request of the DG Intelligence Bureau, one more week was given to him to carry out similar exercise at the residences and chambers of the judges of the four high courts.
Meanwhile, the court adjourned the hearing till today (Wednesday) when Sharifuddin Pirzada, the lawyer of the president, would present his arguments before the full court. APP adds: Replying to a question from the bench, the attorney-general said he came to know about the meeting through a telephone call received from the SC and he was not aware who had convened that meeting.
He said he had appeared before the SJC only on notice and he was only aware of the restraining order passed by the SJC unanimously. Justice Ramday asked as to how the SJC issued a restraining order without hearing the chief justice and even without issuing a notice to him, the attorney-general said in his view, the notice should have been issued before passing the order.
Justice Mohammad Nawaz Abbasi observed there was no need for the SJC to pass the order, particularly when already an order by the president was in the field. The attorney-general contended that if the order was seen to be inappropriate then the SC had powers to modify it by declaring an ex parte decision. “We know how to deal with the matter,” Justice Ramday observed.
Justice Hamid Mirza observed that when the SJC had no powers to remove a judge then how it could pass an interim or final order for restraining a judge from functioning. The attorney-general argued that under PO 27, the president had powers to send a judge on forced leave.
He also said that it should depend on a judge facing a reference whether he prefers open or in camera proceedings. Justice M. Javed Buttar, however, observed that it should be left to the presiding offer, rather than the parties.
The bench asked Malik Mohammad Qayyum, the counsel of the Federation, to adequately compensate Chaudhry Akhtar Ali, advocate on record, whose license was suspended by the bench earlier.
The bench said that the advocate was facing hardship due to licence suspension and he deserved compensation. Malik Qayyum requested the bench to forgive the advocate and restore his licence. “It depends on us and we are doing something for him,” the bench said.
Why SJC was convened in dead of night, asks SC
By Nasir Iqbal
ISLAMABAD, July 17: The Supreme Court on Tuesday grappled with the question why the Supreme Judicial Council (SJC) had restrained Chief Justice Iftikhar Mohammad Chaudhry ex parte in the dead of night not realising that by doing so it was also depriving a judge of his honour, respect, name and whatever he had.
Even when dealing with the case of Mohammad Din (euphemism for commoners), courts always gave prior notice to him, but here no notice was issued to the CJ before passing the restraining order, observed Justice Khalil-ur-Rehman Ramday, who is heading a 13-member larger bench hearing a petition filed by Justice Iftikhar challenging the presidential reference against him.
The bench was interested to know from Attorney-General Makhdoom Ali Khan, who was on the rostrum advancing his arguments, what actually transpired on March 9 when the SJC was convened immediately after the oath-taking ceremony of the acting chief justice and flying one of its members from Karachi in a special aircraft to the capital and what was the emergency to convene the meeting ‘in the dark of the night’.
** All during the hearing, the AG faced a volley of questions from the bench, but he answered some and avoided many. Having the option either to answer the query or remain silent, the AG preferred the latter.**
This led Barrister Aitzaz Ahsan, the lead counsel of the CJ, to conclude that the AG by demonstrating congressional silence had also participated in operation silence.
** Justice Ramday observed: We would not like to scratch many things for our own sake and because personalities were involved in the matter, but one really failed to understand who really convened the SJC meeting and how immediately its members were flown to the capital city.**
He also read out the SJC orders and expressed his surprise over the language used while restraining the CJ. We are in a fix, but nobody tells us anything. It’s a mystery, he said.
A judge is being suspended and no-one has the courtesy even to ask him at least on telephone whether he would like to proceed on leave, Justice Ramday observed, adding that interim orders were always meant for a few days, but here a final order had been issued without giving the CJ opportunity to be heard.
The attorney-general, however, said that any order passed ex parte could be withdrawn, contending it was not possible for him to explain why and how the meeting had been convened because he was not aware about it.
The bench was specifically concerned about the protection and security of tenure of judges and illustrated an example wherein the president sent any judge on forced leave by forwarding to the SJC a two-line reference against him.
Where are his protection, security and independence of the judiciary, the bench asked. Where will the judiciary stand and is there any remedy for all this?
When the opinion of the AG was sought on the presence of some members of the council if their bias was evident against a judge on trial, the AG said that his response would be as prejudicial as the finding of the apex court against those members.
AG Makhdoom concluded his arguments emphasising that the president had passed the restraining orders against the CJ in exercise of the executive powers he enjoyed, although no specific power had been given to him under the Constitution in this regard.
The president had used incidental powers while passing the restraining orders against the CJ, he said. Similarly, Presidential Order (PO) 27 under which the CJ was sent on a compulsory leave on March 15 was a valid law and provided authority to the president to send a judge on forced leave. Till the law was not struck down, the PO-27 would be presumed as a valid law, the AG argued.
Referring to in-camera proceedings of the council, he said there was no hard and fast rule, but the paramount interest should be to ensure justice.
If a person under trial desires open trial he should be honoured. However, the final decision in this regard rests with the presiding officer who should decide keeping in view the situation, he said.
On bias among members of the SJC, he contended that judges were the judge of their own biasness, but the court should balance competing interest.
Earlier, Justice Ramday referred to an interim report of the director-general of the Intelligence Bureau in which he had said that technical sweeping of bugging devices in the Supreme Court building and homes of judges in Islamabad had been completed.
On the request of the IB director-general one more week was given to carry out similar exercise at the residences and chambers of judges of four high courts.
Meanwhile, the Supreme Court asked the government to compensate state-appointed Advocate-on-Record Chaudhry Akhtar Ali the licence of whom was suspended by the court on finding some highly ‘scandalous’ material both against the chief justice as well as judges in the presidential reference placed before the bench by the federation.
** Any bottle or something recovered?**](http://www.nation.com.pk/daily/july-2007/18/index9.php)
ASSAD HAMEED
ISLAMABAD - Justice Khalil-ur-Rehman Ramday, the chief judge of 13-member full court, Tuesday asked Attorney General Makhdoom Ali Khan whether the intelligence operatives have recovered a ‘bottle’ or ‘something’ from his residence during the technical sweeping for tracing bugging devices.
The humorous query came from Justice Ramday when Attorney General was complaining against a news channel screen ticker that had suggested if something was recovered from residence of chief judge during the screening.
Though the Attorney General was speechless in response to the query, the whole courtroom burst into laughter.
Continuing the hearing of Chief Justice’s petition against the presidential reference the other day, Justice Ramday and other lordships raised some very pertinent and thought-provoking questions during the submissions of Attorney General for Pakistan.
** However, the Attorney General was mostly flabbergasted by the many of questions from the bench while on some occasions he opted not to say anything.**
Justice Ramday also observed that if the authority of the executive was not checked with regard to removal of judges then Aitzaz Ahsan would have to find many buses at the bus stand for transporting the causalities.
Responding to the assertion of Attorney General on the need for in-camera trial, Justice Ramday pointed out to the press galleries and said the courtroom is full of reporters but nothing bad has happened.
“The Press has been here throughout this case and writing with free will about the proceedings, even they had been reporting what had not even happened at all,” Justice Ramday amusingly observed with a touch of sarcasm.
Justice Ramday also pointed out that four months have passed since the filing of reference against Chief Justice of Pakistan but the government side has been making changes till now. “It would have been better if the same was filed with due diligence,” he observed.
** When the Attorney General kept on citing foreign judgments and procedures in reply to most of the court queries about the local issue and probable solution to it, Justice Ramday finally said to Makhdoom Ali Khan, “You always reach America without considering the comparability of your reference with our circumstances.”
Even the polite and soft-spoken judge like Justice Tassaduque Hussain Jillani told the Attorney General, “Most of your answers to our questions are only academic.” Justice Jillani asked the Attorney General to give his honest opinion in the discussion for the assistance of full court in response to the queries put before him.**
** The Attorney General was in no position to give an exact answer when asked who had ordered the Supreme Judicial Council to meet in the dark for issuing a restrain order that barred Justice Iftikhar Muhammad Chaudhry from performing as Chief Justice of Pakistan.**
So was his position when Justice Khalil-ur-Rehman Ramday asked him whether any one showed the courtesy to ask the Chief Justice if he would like to step down after being referred against by the President.
Justice Ramday and Justice Javed Buttar both regretted that Chief Justice of Pakistan was not offered any option after the events of March 9.
Towards the end of proceedings, Justice Ramday complained to senior counsel for Federation, Syed Sharrif-ud-Din Pirzada by saying that he had bailed out some of the judges of the full court by asking for deletion of Para 34 and section ‘G’ of Para 36 but did not give the same favour to some other judge.
** Further elaborating his complaint, the hilarious Justice Ramday said in a very serious tone that the Chief Justice is accused of ‘flying’ an aeroplane but some other judges also flew with him, “Would it be fair of these judges to decide the charge of misconduct against the accused judge,” he asked.
Pirzada stood up to reply the complaint but before he could say something, Aitzaz Ahsan, the lead counsel for Chief Justice also rose up and asked his lordship to name the judges with the assurance that Sharrif-ud-Din Pirzada would exonerate all those who would be named by the full court.**
When Justice Muhammad Nawaz Abbasi expressed optimism that Insha Allah all the 13 members of full court will be Chief Justice in the times to come, Justice Ramday instantly corrected Justice Abbasi by saying that he would not be a member of such a party.
During the arguments of Attorney General, Malik Mohammad Qayyum and his son Malik Muhammad Ahmed Qayyum kept on sitting right and left of Syed Sharrif-ud-Din Pirzada.
Before the full court ended the day’s proceedings, Aitzaz Ahsan said that Attorney General opted for “congressional silence” in wake of “operational silence” by not responding to many of the vital questions raised by the full court.