SC dismisses govt reply

ISLAMABAD: The Supreme Court of Pakistan on Monday dismissed the federation’s rejoinder to the petitions challenging some provisions of the 18th constitutional amendment. The court has also issued a show-cause notice to the federation’s counsel Dr Abdul Basit for having misled the court.

An overconfident Basit appeared before the 17-member bench headed by Chief Justice Iftikhar Chaudhry and voiced his objection to the composition of the bench. Basit’s argument was that SC judge Zahid Hussain’s exclusion from the bench is personality-driven.

Basit’s second objection was regarding Chaudhry’s inclusion on the bench, citing conflict of interest as under article 175-A of the 18th amendment, the chief justice will preside over the judicial commission. As such, contended Basit, Chaudhry should not be part of the bench.

At Chaudhry’s insistence on knowing who had ordered Basit to raise these objections, the government’s lawyer said the objections had been raised on the directions of President Asif Zardari. When asked whether these directions had been given to him in writing, Basit said that Zardari’s principal secretary Salman Farooqi had given him the instructions over the phone since the president had been abroad.

To this, the chief justice demanded on knowing whether the principal secretary was authorised to give such directions according to the Rules of Business. “According to the Rules of Business, everything is in writing and not discussed on the telephone,” said Justice Khalilur Rehman Ramday. “This is highly sensitive business of the state and you are saying you talked to him on the telephone?”

However, then Basit took an inexplicable turn. He said the decision had been taken unanimously at a meeting conducted in law minister Babar Awan’s office where all six lawyers engaged by the government had agreed to raise these objections in the rejoinder.

Later, in his response to the rejoinder, petitioner Akram Sheikh said the objection regarding the composition of the full court bench is completely baseless since the bench was requisitioned by the three-member bench that had earlier been hearing the case. And that order, contended Sheikh, said that a larger bench should be formed, not a full court bench, and the same is mentioned in the SC’s final cause list.

Regarding Chaudhry’s presence on the bench, Sheikh argued that the issue was not about the personal benefit of any judge but of the independence of the judiciary and that judges are under oath to protect, preserve and defend the constitution. “This is an attempt to scandalise the office of the chief justice and this objection is frivolous and scandalous,” said Sheikh.

Next up before the bench was Attorney General Maulvi Anwarul Haq. While Haq agreed that the federation’s first objection was baseless, he too said the top adjudicator should separate himself from the bench.

“If we accept the argument that the CJ will be a beneficiary, the prime minister too should have separated himself from the parliament at the time of passing of the 18th amendment because the transfer of power contained in the amendment made the premier its direct beneficiary,” observed Justice Ramday.

“You should have guided the government properly and taken a stance,” Chaudhry chided Haq. “In the past, many AGs not only took a principled stance, they even resigned on that basis.”

But the hearing took another twist after the break when the bench reassembled to announce the verdict. The court’s registrar Dr Faqir Hussain handed over to the chief justice Salman Farooqi’s message that he had not asked Basit to file the objections.

On hearing this, Basit confessed he had erred in disclosing the name of his client and was ready to be punished accordingly.

“You have misled the court,” said a visibly angry Chaudhry. “We had written our order but now we will rewrite it.”

The order that the bench came back with overruled the federation’s two objections regarding the composition of the bench. Further, the court also issued show cause notices to Basit and advocate on record Mehmood A. Sheikh on why they should not be suspended from practice. Both lawyers have been asked to submit their replies today (Tuesday), which is when the bench resumes hearing the case.

Published in the Express Tribune, June 1st, 2010.