Justice restored
SC full court sets aside presidential reference against CJP by 10-3; declares appointment of ACJs illegal; Ramday says trial was not a battle between Army and judiciar
By Sohail Khan

ISLAMABAD: In one of the most historic judgments in the country’s judicial history, the Supreme Court on Friday reinstated Chief Justice Iftikhar Muhammad Chaudhry, setting aside the presidential reference filed against the CJ on March 9, 2007.

President General Pervez Musharraf had made Chief Justice Iftikhar Muhammad Chaudhry non-functional after filing the reference against him on March 9.

A 13-member full court of the Supreme Court, headed by Justice Khalil-ur-Rehman Ramday, declared Chief Justice Iftikhar Muhammad Chaudhry’s constitutional petition, filed under Article 184 (3) of the Constitution challenging the presidential reference, maintainable.

The full court also declared the acting chief justices’ appointment of March 9 and 22, 2007, without lawful authority. The verdict was announced with 10 judges in favour and three against. The three judges who opposed the verdict were not against the restoration of the chief justice. They differed on the constitutional point that the president was empowered to file a reference against the chief justice.

The three judges who dissented are Justice Faqir Muhammad Khokhar, Justice M Javed Buttar and Justice Saiyed Saeed Ashhad. The ten judges who handed down the historic judgment are Justice Khalilur Rahman Ramday, Justice Muhammad Nawaz Abbasi, Justice Mian Shakirullah Jan, Justice Tassadduq Hussain Jillani, Justice Nasirul Mulk, Justice Raja Fayyaz Ahmed, Justice Ch Ijaz Ahmed, Justice Syed Jamshed Ali, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.

Announcing the verdict, Justice Khalil-ur-Rehman Ramday said that by a 10-3 majority the constitutional petition No 21, filed by Justice Iftikhar Muhamamd Chaudhry, is accepted and he is allowed to hold the office of the chief justice of Pakistan, and the presidential reference dated March 9, 2007, is set aside.

The other connected petitions shall be listed before the appropriate benches in due course for their disposal in accordance with the law, the order stated.

The order further reads that the president’s order No 27 is unanimously declared ultra vires of the Constitution and consequently the said order of the president dated March 15, 2007, is also unanimously declared to have been passed without lawful authority.

Referring to the validity of the president’s order of March 9, 2007, and the order of the same date of the Supreme Judicial Council, restraining the chief justice from acting as a judge of the Supreme Court or the chief justice of Pakistan, the full court set aside both these orders as being illegal; however, the court held that since according to the minority view on the question of the validity of the direction (the reference) in question, the said reference had been filed by the president, therefore, the court held that it could pass a restraining order under Article 184 (3) read with Article 187 of the Constitution.

The full court further held that the appointments of the acting chief justices of Pakistan vide notifications dated March 9 and 22, 2007, are declared to have been made without lawful authority.

However, the full court held that this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and or legal obligations by the acting chief justices of Pakistan during the period in question and this declaration is so made by applying the de-fecto doctrine.

Regarding the accountability of the chief justice of Pakistan, the full court held that it had never been anybody’s case before us that the chief justice was not accountable. Therefore, the same issue does not require any adjudication. The court held that all other legal and constitutional issues raised before us shall be answered in due course through the detailed judgment/judgments to follow.

Earlier, at completing the hearing of the constitutional petition of the chief justice and before retiring for consultations, Justice Ramday said they are all Muslims and their behaviour should be in accordance with Islam. He said those who would be hurt by the court decision should show tolerance. Similarly, he said, those who would be happy at the court’s decision should not cross limits in jubilation. They, he said, should remember God and adopt such behaviour that is acceptable to all. He said they should offer Nawafil that is the way of the holy prophet (PBUH). All the parties should follow in the footsteps of the holy prophet (PBUH) in their reactions, he stressed.

He said the verdict should not be taken as victory for someone and defeat for others. He said the trial was not a battle between the army and the judiciary. He also said, "We are judges, not trade unionists."

Justice Ramday thanked counsel for both the parties for assisting the court. He particularly referred to the assistance provided by Aitzaz Ahsan and Justice (Retd) Qayyum in this regard. Earlier, Aitzaz Ahsan stretched his arguments to one hour though he was allotted 45 minutes by the court. Aitzaz referred to the flaws in the evidence presented by the government before the court.

The full court after hearing the arguments of Chaudhry Aitzaz Ahsan announced that the judgment would be announced after 2 pm. A large number of people, media persons and legal fraternity were anxiously waiting for the verdict and confined themselves to the courtroom. Similarly, a large number of people, who came from different parts of the country, waited outside the court for the decision.

Special security arrangements were made outside the Supreme Court by deputing large contingents of police. Soon after the historic verdict of the full court, lawyers expressed their jubilation and embraced Chaudhry Aitzaz Ahsan and later picked him up on their shoulders.

Chief Justice Iftikhar Muhammad Chaudhry was suspended on March 9, 2007 after President Musharraf filed a reference against him, following allegations that he abused his position, notably to obtain a top police job for his son and other privileges for himself.