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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.

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President, PM accept verdict

President, PM accept verdict

ISLAMABAD: President Gen Pervez Musharraf has lauded the verdict of the Supreme Court of Pakistan and said that he had assured the nation in this regard in public gatherings.

Talking to Prime Minister Shaukat Aziz, federal ministers and prominent PML leaders, who called on him at the his Camp Office in Rawalpindi on Friday the president said that he had no confrontation with the chief Justice and he had merely fulfilled his constitutional responsibilities by dispatching the reference against him.

Sources told Online that Musharraf told the participants of the meeting that he strongly believed in the stability of institutions. The sources further said that the prime minister and PML leaders assured the president of upholding the prestige of the apex court and said the government would not show any negative reaction which might aggravate the situation. The government has decided not to appeal against the verdict, the sources said.

Maj Gen (retd) Rashid Qureshi, the spokesman for President Gen Pervez Musharraf also said the judgement of the Supreme Court would be honoured, respected and adhered to. When asked for the president’s reaction to the Supreme Court’s judgement, the president’s spokesman told APP that the president had stated earlier that any judgement the Supreme Court arrived at would be honoured, respected and adhered to.

Asim Yasin adds: Reacting to the Supreme Court’s judgement, which set aside the presidential reference against Justice Iftikhar Muhammad Chaudhry and reinstated him to the august office of the Chief Justice of Pakistan, Prime Minister Shaukat Aziz made it clear that the government accepted the court’s verdict in letter and spirit.

He urged all the sections of society to accept and respect the apex court’s judgment as "word of the courts is always upheld in a democratic society". "The nation must accept the verdict with grace and dignity as doing so is reflective of a mature and law-abiding nation." The prime minister set aside the impression that the judgment reflected the government’s defeat. "This is not the time to claim victory or defeat," he said. The Constitution and the law have prevailed and must prevail at all times. It is time for unity and cohesion in all segments of society."

About strengthening of democratic process in the country, the prime minister said, " We should all look ahead towards forthcoming elections scheduled for later this year and prepare ourselves to fully participate in the forthcoming democratic process."

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Opposition demands resignation of president, PM

Opposition demands resignation of president, PM

ISLAMABAD: Terming the reinstatement of Chief Justice Iftikhar Muhammad Chaudhry a victory of the masses, opposition leaders on Friday said the Supreme Court judgment would prove to be first step towards enforcement of rule of law in the country.

The Supreme Court verdict would lay to rest the ‘doctrine of necessity’ forever, they hoped. They also demanded rolling of the heads of those who piloted the reference against the chief justice.

The opposition leaders with the exception of Benazir Bhutto also demanded resignations of the president and prime minister along with the cabinet so that the country could go for new elections under a national government with an independent election commission.

Pakistan People’s Party Chairperson Benazir Bhutto, however, backed the continuation of Gen Pervez Musharraf and Shaukat Aziz as president and prime minister of Pakistan, respectively, here on Friday, saying she would not demand their resignations at this moment.

Commenting after the Supreme Court verdict reinstating Chief Justice Iftikhar Muhammad Chaudhry at a hurriedly called press conference at the residence of Rehman Malik, Benazir Bhutto made it clear that she would not demand the resignation of Musharraf at this moment. She also said she was not interested in the continuation of the lawyers’ movement after the Supreme Court verdict and said the goal of the lawyers movement has been achieved with the announcement of the judgment.

Benazir said she hoped the decision of the Supreme Court would change the mind of Musharraf and he would allow both the exiled former prime ministers to return to the country. The Supreme Court verdict would be remembered as a popular struggle for the independence of the judiciary for a long time, she said.

Agencies adds: Pakistan Muslim League (PML-N) Quaid Nawaz Sharif has termed the Supreme Court judgment "an historic step towards constitutional rule", saying Justice Khalilur Rehman Ramday and his fellow judges deserved to be congratulated for providing the nation with a ray of hope.

In a statement released on Friday, the PML-N leader said after the decision it was obvious that the notorious ‘doctrine of necessity’ had been buried once and for all. Opposition Leader in the National Assembly Maulana Fazlur Rehman, also termed the verdict historic. While congratulating Chief Justice Iftikhar Muhammad Chaudhry on his reinstatement, he demanded of President General Pervez Musharraf to show moral courage and resign from his office.

Muttahida Majlis-e-Amal (MMA) President Qazi Hussain Ahmad has termed the judgment a good omen for the restoration of Constitution and democracy. Qazi said restoration of the chief justice has opened up a new chapter for independence of judiciary, saying the decision would raise the image of Pakistan in the comity of nations. MQM chief Altaf Hussain in a statement issued here on Friday welcomed the reinstatement of chief justice.

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CJ not to disappoint people

CJ not to disappoint people
By Ansar Abbasi

ISLAMABAD: The Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry, has conveyed to angels who became friendly with him after March 9 his extreme happiness over his historic restoration to office and pledged that he will not disappoint the people of Pakistan.

"I am really thankful to Almighty Allah for vindicating me and my honour and reputation," an angel quoted the chief justice as saying, adding that as the restored chief justice of Pakistan, he holds no grievance against anybody. The CJ’s official residence was thronged by media persons, lawyers and others on Friday but Justice Iftikhar did not give any comment to journalists and remained composed despite their repeated requests to offer, at least, a few remarks.

However, like the recent past, he opened up his heart only before some of the angels, who incidentally are known to this correspondent too. Luckily, these angels share with The News what is otherwise a secret between them and the chief justice.

Justice Iftikhar might be upset with this sharing of secrets – that too with a journalist – but the angels’ code of ethics is different from that of human beings. However, one thing is clear that they don’t tell a lie and also do not distort facts.

According to the angel, he never saw the chief justice as happy as he was on Friday. The chief justice, the angel said, was thankful to the media, the lawyers and the whole nation who had wholeheartedly supported him during the most testing times of his life.

"I can never forget the love shown to me by the people of this country," the chief justice was quoted as saying by the angel, who in a lighter vein said that by the way Justice Iftikhar also uttered some good words about this correspondent.

When the chief justice heard the Supreme Court’s short order, he told the angel, sitting next to him, though not invisible: "Don’t you remember that from the day one, I have been telling you that my hands are clean; I am innocent; and I did not do anything wrong."

Regarding the independence of judiciary, the chief justice was quoted as saying that he had always been pledging and emphasising it for the future of Pakistan. The angel said that the chief justice, while referring to the historic decision handed down by the 13-member full court, said with great pride, "Who says we don’t have an independent judiciary?"

Justice Iftikhar promised that he would not compromise on the question of the independence of judiciary.

The angel was requested to seek an on-the-record interview of the chief justice with The News but he came up with a polite "no", arguing that Justice Iftikhar was of the view that being a judge it would not be appropriate for him to give interviews. "I was confined before and for being a judge, I will remain so," the chief justice told the angel, who though said Justice Iftikhar wanted to share with the whole world his moments of pleasure but restricted himself for the sake of the decorum of his office.

The chief justice asked the angel who visited The News office after meeting Justice Iftikhar as to how were the people reacting to the court’s decision. "In an exceptional way," he was told. The angel told the chief justice that the people were distributing sweets, exchanging best wishes and foreseeing a great future for Pakistan.

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CJ not to disappoint people

Triumph of law and reason
By Babar Sattar

The reinstatement of Chief Justice Iftikhar Chaudhary by a full bench of the Supreme Court led by Justice Khalil-ur-Rehman Ramday is probably the most significant judicial decision in Pakistan’s history. It is particularly important in terms of its contribution to constitutional jurisprudence, in fighting for the independence of the judiciary by refusing to accept the encroachment by the executive over the judicial function, and in breathing a new life and hope into the withered soul of this nation.

Never before in the life of this nation did the Supreme Court decide a legal question of such enormous political consequence on the basis of principle as opposed to expediency at a time when such a decision challenged the entrenched status quo. Martial laws were intermittently declared illegal in Pakistan, but never while a dictator was still in power.

By declaring the reference of Gen Musharaf extra-legal, the Ramday court has refuted the cynical view in Pakistan that power will always trump the law. The decision of the Ramday court will have tremendous jurisprudential value for giving effect to the cherished elementary principles of our fundamental law. The short order makes at least three important points. One, in holding the petition of the chief justice – that challenged reference proceedings before the Supreme Judicial Council – maintainable unanimously, the Supreme Court reiterated the principle that the judicature has the final word on what the Constitution means and the Court will not shirk its responsibility to interpret the meaning and scope of law only because it affects the exercise of political power in the present.

Two, it also unanimously upheld the integrity of our constitutional structure of separation of powers by ruling that the head of the executive or the state can under no circumstances suspend the head of the judiciary and appoint a replacement at will. Accordingly, the orders of the government and the Supreme Judicial Council suspending the CJ and restraining him from performing judicial functions have been declared illegal, along with the appointments of Acting Chief Justices. And three, the presidential reference against the CJ has been declared illegal and thrown out by a 10-3 majority vote of the Ramday Court, thereby, putting to rest the judicial crisis that has engulfed Pakistan since March 9th.

The decision of the Supreme Court is equally promising for the way it said what it said and the outcome it produced. The manner in which Justice Ramday conducted the case by infusing integrity, decorum, congeniality and wit into the court proceedings was commendable. Under his leadership, the full bench of the Supreme Court acted unanimously in declaring what our Constitution says about independence of judiciary and separation of powers.

The consensus in the Supreme Court over how constitutional principles must be implemented in practice is in consonance with the understanding of the legal fraternity reflected through the lawyers’ movement, making the legal understanding of the concept of judicial independence unequivocal. By disregarding extraneous considerations and applying the Constitution in letter and spirit, the Supreme Court has removed the disconnect between the theory of the Constitution and its practical application, which unfortunately reduced the concept of rule of law in Pakistan to a meaningless fiction.

Further, the Supreme Court is fundamentally an interpreter of the law and not a fact-finding court. By focusing on the true import of the principle of judicial independence and putting it to effect instead of getting embroiled in factual controversies of the CJ saga, the Supreme Court has laid down a binding precedent, while also putting an end to the legal uncertainty and social turmoil unleashed by General Musharaf’s adventurism and ham-handed treatment meted out to the CJ.

In handing down a bold and unambiguous order, the Supreme Court has offered a public tutorial on why the Constitution matters to the life of ordinary people. Rule of law is the only concept that comes with a promise of egalitarianism in an otherwise unequal world. In restoring a fallen CJ, the Ramday Court has offered hope to the ordinary folk that the judiciary is an arbiter of justice and can offer retribution to those wronged even by the powerful.

There are many lessons to be gleaned from the CJ’s trial, the political activism of the civil society is imperative for the health of a nation and to also prevent the abuse of state authority. The ruling regime might even have succeeded in evading searching judicial scrutiny for its attempted judicial coup, had it not been for the staunch lawyers’ movement. The response of the entire legal fraternity to the suspension of the CJ was so instantaneous and unqualified that it left little doubt regarding the extra-legal nature and moral bankruptcy of the ruling regime’s position.

As members of the civil society and representatives of the middle class, the lawyers established that a change from within is possible so long as there is clarity of purpose and the resolve to act selflessly. As professionals and bread-earners, they had to pay serious financial dividends for their strikes. But it was evident yesterday that the triumph of their principled stand has redeemed their sacrifices.

The restoration of the CJ is a propitious development for emancipation of the judiciary. But much work remains to be done. First of all, the Chief Justice will need to establish through his conduct that this was a battle for institutional independence and integrity and not a personal matter. It will be for him to ensure that he does not preside over a divided house in terms of performing his administrative functions, and that in exercising his judicial philosophy he continues to be guided by principle and not personal opinion or outcome.

For the lawyers, the Ramday ruling marks the realization of their fundamental objective of protecting judicial independence. They should build on their success and continue to struggle for establishment of democracy and empowerment of the people, but they must also ensure that the battleground moves to the political arena and away from the courts of law. Not all injuries are legal injuries and there are limits to the nature of relief courts can offer. A conscious effort needs to be made to disentangle the judiciary from partisan matters. There were many aspects of the lawyers’ movement that were justifiable only due to the extraordinary nature of the circumstances created due to abuse of authority by the executive. But now the primary responsibility of extrapolating the courts from the lawyers’ movement rests with the lawyers.

What lessons the Musharraf regime can learn from this debacle is a separate chapter altogether. General Musharraf put into play a series of events that threatened to cause irreparable harm to the structure of the state and the spirit of the nation. He would be wise to practice self-accountability at this hour before public accountability takes over.

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Public overwhelmed with joy

Public overwhelmed with joy
ISLAMABAD: As soon as the Supreme Court announced its judgment restoring Iftikhar Muhammad Chaudhry as the chief justice of Pakistan here on Friday, the people were overwhelmed with jubilation not only within the country but also abroad.

Such a feeling of jubilation and celebration among people had never been witnessed before. The people got so excited that they embraced each other and distributed sweets. Besides ordinary citizens, even those associated with the ruling Pakistan Muslim League and the bureaucracy took to the streets flashing victory signs. Most of them were recalling the happenings of the past four months, including the public rallies in the scorching summer heat led by lawyers and representatives of all sections of society.

Several bloody incidents also took place to claim many precious lives. A long judicial battle was fought. Some sceptics, however, feared that the good news received after so many sacrifices might be short-lived. They were of the view that the unprecedented happiness, which had rarely been seen, might be momentary. They were praying to Allah Almighty to make this happiness long-lasting and also continue so that the emerging atmosphere could stay, strengthening the democratic institutions in the country.

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