REFERENCE BEFORE PRESIDENT OF PAKISTAN, PRESIDENT SECRETARIAT,ISLAMABAD

 Dated: 27-11-2013

Justice (Retd.) Yasmin Abbasey. …………..…………..Petitioner

 Versus

  1.       Mr. Chief Justice Ifthikhar Muhammad Chaudhry
 2.        Mr. Justice (Retd.) Rana Bhagwan Das
 3.        Mr. Justice (Retd.) Jawed Iqbal
 4.        Mr. Justice Shakirullah Jan
 5.        Mr. Justice Raja Fayaz Ahmad
 6.        Mr. Justice Nasir-ul-Mulk
 7.        Mr. Justice (Retd.) Ghulam Rabbani………………..Respondents

His Excellency the President,
Islamic Republic of Pakistan
Islamabad

Subject:Reference under Article 209 of the Constitution of the Islamic Republic of Pakistan against CJP Iftikhar Muhammad Chaudhry and his six other companion Judges.

Being deeply aggrieved and dissatisfied with the order dated 03.11.2007, the Petitioner is constrained to file this Reference against Justice Iftikhar Muhammad Chaudhry who is presently  functioning as the Chief Justice of Pakistan and his six other companion Judges namely, Mr. Justice (Retd.) Rana Bhagwan Das, Mr. Justice (Retd.) Jawed Iqbal, Mr. Justice Mian Shakir-ullah Jan, Mr.Justice Raja Fayaz Ahmed, Mr. Justice Nasir-ul-Mulk and Mr. Justice (Retd.) Ghulam Rabbani, who authored the said order dated 03.11.2007. The Reference is based on the following facts and grounds:

l.          After imposition of emergency on 03.11.2007, electronic media on 3rd/4thNovember 2007 had flashed a news item that the above named Seven Judges at that time were present in the Supreme Court of Pakistan and, after imposition of emergency had constituted a bench, to consider the application moved by Barrister Aitizaz Ahsan on 02.11.2007 in a Petition Bearing C.P. No. 73 of 2007 filed by a retired Judge namely, Mr. Wajihuddin Ahmed. The said bench without any notice to the parties concerned, passed a restraining order, whereby besides other authorities mentioned in the order, the Hon’ble Judges of the Supreme Court and High Courts were restrained not to take oath under the Provisional Constitutional Order 2007.

(Copies of the order passed in CP No. 73 of 2007 filed by Justice (Retd.) Wajihuddin at page 135 of judgment passed in C. Ps. 8 & 9 of 2009 and the press release of Supreme Court dated 04.11.2007 are annexed herewith as Annexures “A” & “B” respectively).

  
2.         After imposition of emergency, as per past judicial precedents some of the Hon’ble Judges were invited for taking oath under the PCO while some were ignored. The present petitioner in bona fide belief responded to this offer to take oath while following one of such precedents viz. Zafar Ali Shah’s case that was decided by a bench consisting of large number of Judges of the Supreme Court including the aforesaid Justice Iftikhar Muhammad Chaudhry. In this background the petitioner took oath on 03-.11.2007 which was later on declared as illegal in a judgment rendered in C.P. No.8 & 9 /2009 on  31-07-2009 by a bench of the Supreme Court headed by the aforesaid Justice Iftikhar Chaudhry who had earlier decided the above referred Zafar Ali Shah’s Case.

(Copies of judgment dated 31-07-2009, Review Petition and the reply to show cause Notice are annexed herewith as Annexures “C”, “D” & “E” respectively).

3.         Although in Petitions No.8 and 9 of 2009, filed by Sindh High Court Bar Association, there was no request seeking any prayer against the petitioner, yet the respondent Judges on their own raised a new ground/prayer and passed an order thereby referring the matter to the Supreme Judicial Council against the Petitioner and the other Hon’ble Judges. Such finding of Supreme Court without giving an opportunity to applicant to show cause against the action attributed to her, was a deliberate and a blatant violation of principles of natural justice so well entrenched in our judicial system from times immemorial. Besides, the above step taken by the full bench of Supreme Court in C, P. No 8 & 9 of 2009 on their own, makes the position of Supreme Court that of a complainant and thus the Judges of the bench were debarred from carrying out the subsequent proceedings against the Petitioner in violation of their code of conduct. The aforesaid judges went on with these illegal proceedings notwithstanding the pleas raised by petitioner that the bench, as composed, during whole trial was not competent to carry or continue the same.

(Copy of the pleas raised by the Petitioner before the Supreme Court in May 2010 is annexed herewith as Annexure “F”).

 
4.         For further clarification it is stated that by virtue of Article 209 of the Constitution of Pakistan 1973, Supreme Court of Pakistan on its own cannot refer the matter to Supreme Judicial Council, since, clause 5 of Article 209 clearly provides that if on information from any source the Council or the President is of the opinion the judge of Supreme Court or High Court falls under any category of disqualification as mentioned in clause 5 (a) and (b), it is only then that the matter can be referred to SJC. The procedure for sending the reference is duly prescribed in schedule V-B, Rule 15-A of Rules of Business 1973. The non observance of the said procedure in itself is tantamount to violation of article 175(2) of the Constitution. As such these Judges themselves have also violated the Oath that a Judge of the Supreme Court takes under the Constitution.

 
5.         That during the pendency of the aforesaid proceedings, the petitioner has convincingly discovered that order dated 03.11.2007 is non existent and the so called order of 3rd of November 2007 which has been relied upon by Justice Iftikhar Chaudhry and his fellow judges in the judgment of 31st of July 2009 is a fake and questionable document being inconsistent with the ground reality and circumstances prevailing at that time, which the Petitioner intends to orally explain by referring to documentary evidence as and when a chance is afforded to her in this regard. Copy of order dated 03.11.2007, as passed on the day is very much material to examine the authenticity of the said order.

 (Copy of 3rd November 2007’s order is annexed herewith as Annexure “G”).

 
6.         It is submitted that as per the news item published in the media, the personnel of armed forces had surrounded the Supreme Court building and had also blocked all entry points of the Supreme Court building, therefore, it is unimaginable and unbelievable that the order dated 03.11.2007 would have been conveyed to all concerned, particularly the Petitioner. By way of abundant caution the Petitioner sought clarification (through an application) from the Registrar High Court of Sindh about the order dated 03.11.2007 the Registrar replied officially that the copy of the said order is not available on the record.

(Copies of the Petitioner’s application to the Registrar, High Court of Sindh dated 16.09.2009 and the reply of Registrar, Sindh High Court dated 24.09.2009 are annexed herewith as Annexures “H” & “I” respectively).

 
7.         This document lends support to the Petitioner’s apprehension and belief that before taking oath on 03-11-2007 neither the alleged order was received by the Registrar of High Court of Sindh, nor at least the same was officially communicated to the Petitioner. The mode of communication as shown in the judgment of 31.07.2009 is through fax. According to Supreme Court, it was faxed to the Registrar of Sindh High Court on its Fax No. 021-9203263, but it is worth mentioning that this fax number does not belong to any of the telephone or fax nos. installed in the offices of Sindh High Court in 2007. This evidence further establishes the fact that the existence of the Order dated 03.11.2007 was highly doubtful on that particular date, and seems to be the product of some later date which amplyreflects the mendacity of CJP Iftikhar Muhammad Chudhry and his companion judges.

 (The Official Diary of the year of 2007 of the Sindh High Court showing Fax Nos. and the copy of telephone bill of Supreme Court for the month of November, 2007 are annexed herewith as Annexures “J” & “K”).

 8.        That in view of the aforesaid mis-statement of CJP Iftikhar Muhammad Chaudhry who was the author of judgment of 31-7-2009, certain questions and doubts cropped up in mind of the petitioner as to the genuineness of this so called order of 03-11-2007 and the dubious characteristics of this so called order were unmasked when a draft of that so called order came out in public through some source with definite evidence of forgery. A mere glance or a bare perusal of that draft of the said so called order is enough to discover the humbug placed by CJP Iftikhar Muhammad Chaudhry and his fellow judges in their judgment of 31st of July 2009 to gain sympathy of the public by deceiving the people of Pakistan in a manner hitherto unknown in the judicial history of this country.

9.         When this fact of forgery of CJP Iftikhar Muhammad Chaudhry came to the knowledge of petitioner, she in May 2010 in Criminal Original petition No.9/2009 raised almost 40 questions, with reference to the so called order of 03-11-2007, before Supreme Court. But as Supreme Court headed by CJP Iftikhar Muhammad Chudhry had no answer to those questions therefore he avoided the same and went on to render an illegal and illogical judgment removing the majority of the judges of the superior courts unconstitutionally and victimized the petitioner in particular by depriving her from her services as well as service and pensionary benefits.

10.       After announcement of judgment in C.P. No.8 &9 /2009 on              31-7-2009, the present petitioner filed a review petition after giving a notice as required by law to the respondents. A news was published in Daily Jang of 23-8-2009 in this regard.

11.       Article IV of code of conduct reproduced as under says that “A judge must refuse to deal with any case in which he has a connection with one party or its lawyer more than the other, or even both parties or the lawyers.

 
12.       To ensure that justice is not only done, but it is seen to be done, a judge must avoid all possibility of his opinion or action in any case being swayed by any consideration of personal advantage, either direct or indirect.

13.       In spite of the clear-cut articles of code of conduct formulated by Supreme Judicial Council on 29-8-2009 after restoration of CJP, Justice Iftikhar Muhammad Chaudhry has himself not followed the same. Partiality and biased attitude of Iftikhar Muhammad Chaudhry can be judged from the fact that as soon as notice of filing of Review Application was received by the counsel of respondent, Mr. Rashid Rizvi,   Mr. Munir Malik and others soon thereafter held a joint meeting with CJP Iftikhar Muhammad Chaudhry and it was resolved therein on 23-8-2009, duly published in Daily Jang, that CJP Iftikhar Muhammad Chaudhry had decided and announced that no PCO Judges will be reinstated.

14.       That statement of CJP and the counsels of respondent made after the issuance of notice qua filing of review petition show the predisposition and biased attitude of CJP Iftikhar Muhammad Chaudhry for which he is liable to be proceeded against under Article 209 of the Constitution of Pakistan on the charge of committing misconduct through violation of the articles of code of conduct referred to above.

15.       The most crucial aspect of the case is that as per settled principle of law, no judge of superior court can be removed except through due process of law, as provided in Article 209 of the Constitution of Islamic Republic of Pakistan. There are number of decisions on this point but for the sake of brevity it is for the time being sufficient to refer and rely on the judgment reported as PLD 2010 SC 61 viz. CJP Iftikhar Mohammad Chaudhry v. President of Pakistan, wherein it was held, inter alia, “No judge of superior court can be removed except due process of law, as provided in Article 209 of Constitution”, but in the case of the Petitioner a very alien procedure, in utter violation of the Constitution, has been followed to remove the Petitioner.

(Copy of judgment reported as PLD 2010 SC 61 viz. CJP Iftikhar Mohammad Chaudhry v. President of Pakistan is annexed herewith as Annexure “L”).

16.       It is repeatedly stated in the judgment of 18th of May 2011, that as the acts of 3^rd November 2007 were not validated by the Parliament, therefore, the Petitioner from the day of passing of 18th amendment on 20th April, 2010, is no more a judge of the High Court. This observation, apart from being factually incorrect is absurd, unreasonable, illogical and whimsical because much prior to the annulment of acts of 3rd of November 2007 by the 18th amendment, the legislature (duly recognized by the constitution) had conferred validity on the acts of 3rd of November 2007. Even otherwise the earlier state of things i.e. the position, status or appointment of the petitioner as a judge of Sindh High Court would by no stretch of imagination vanish or dissipate owing to acts resulting from intervening events of 3rd of November 2007 till her removal under Article 209 of the Constitution. Justice Chaudhry who was fully conscious of this legal position made a half hearted illegal attempt along-with his companion judges by directing the government to file a complaint for the removal of the petitioner before the SJC besides initiation of contempt of court proceedings on some imaginary violation of the aforesaid so called order of 3rd of November 2007 attributed to the Supreme Court. As all these indirect and third degree tactics to remove the petitioner (through some semblance of law) had failed, Justice Chaudhry finally decided to violate the constitution and accordingly held in league with his companion judges that the petitioner had ceased to be a judge after the passing of the 18th Amendment.

17.       So far double validation of 12th October 1999 acts is concerned, it arose because of the fact that most of the Judges of the apex Court including CJP Iftikhar Mohammad Chaudhry took P.C.O. oath in 2000 and till the 17th amendment in constitution were working unconstitutionally in view of Supreme Court’s own observation made in judgment of 31st of July (supra) as till now they have not taken Constitutional oath under the Constitution and are still sitting judges despite their PCO oath. Claim of Supreme Court that their status as Supreme Court Judge has been validated again in 18th amendment whereas the applicant was ignored in 18th amendment therefore she is no more Judge of High Court is absolutely illogical, as when the acts of 12th October, 1999 along with LFO 2000, by 18th Amendment were declared illegal, including the declaration made by Supreme Court in its different judgments followed by Zafar Ali Shah case, which had validated the PCO oath of 2000 of present judges of apex court, it became necessary to again validate the taking of oath under PCO 2000 by them in 18th Amendment otherwise all these judges presently sitting in the Supreme Court and some of the Judges sitting in respective High Courts would have gone home.

18.       The fact has also significant importance that by judgment dated 31.7.2009, Supreme Court had declared all acts done by Ex-General Pervaiz Musharraf through 17th Amendment as illegal and unconstitutional, but a part of that very 17th Amendment protecting the PCO oath of the present judges of Apex Court have been saved. This shows the egocentric approach of CJP Iftikhar Muhammad Chudhry and his companion. Such a conduct as a result whereof a judge promotes self interest and becomes a judge in his own cause is undoubtedly an accentuated form of misconduct.

 
19.       Therefore the judgment delivered on 18.05.2011 as well as the Notification issued on 08.08.2011 both are in violation of the Constitution of the Islamic Republic of Pakistan and are illegal and liable to be disregarded by all and sundry. The restoration/re-appointment of CJP Iftikhar Muhammad Chaudhry and many of other Judges at present sitting in Supreme Court through Notification dated 17.03.2009 was also illegal as none of the Articles of the Constitution of the Islamic Republic of Pakistan provide any remedy, to deposed judges, to again come on the seats through Re-appointment. Even otherwise the days when those notifications of re- appointment were issued Zafar Ali Shah’s Case was in field and the same was never specifically set aside in any subsequent judgment including the judgment in Tikka Iqbal’s case. To the best of the knowledge of the petitioner the Review of Zafar Ali Shah’s case is still pending. Thus issuance of Notification was in negation of the observation of Supreme Court in Zafar Ali Shah’s case.

(Copies of judgment dated 18.05.2011, judgment in Tikka Iqbal’s case and the Notification dated 17.03.2009 of restoration of CJP Iftikhar Muhammad Chaudhry are annexed herewith as Annexure “M”, “N” & “O” respectively).

20.       It is further submitted that under Article 270 AAA of the Constitution of the Islamic Republic of Pakistan, all the steps/action taken on 03.11.2007 were validated, therefore, in constitutional parlance once an amendment is made in the Constitution, by virtue of Article 239(5) of Constitution of Pakistan, it cannot be called in question in any court on any ground whatsoever. Article 69 further provides that the validity of any proceedings in Majlis-e-Shoora (Parliament) shall not be called in question on the ground of any irregularity of procedure. Therefore, the acts of 3rd November, 2007 which were validated by the Constitutional (Amendment) Order 2007 on 21st November 2007, could not be questioned and declared illegal by the courts. Under the trichotomy of power, it is the parliament of Pakistan, legally competent to deal with this aspect of the matter.

 
21.       It is submitted that the Petitioner has been deprived of her vested rights to complete her tenure in violation of the constitution and the law.

22.       It is submitted that the unanimous verdict of the aforesaid judges against the brother judges of the superior courts without the slightest dissent clearly establish that unconstitutional judges in order to protect their illegal appointments were hand in glove in violation of the constitution to the detriment of the validly appointed judges.

 23.      Article 10-A of the Constitution of the Islamic Republic of Pakistan speaks about Fair Trial which means a trial without a bias mind. This is the right, which was again and again demanded by the Petitioner during whole proceeding till last order of Supreme Court of 08.05.2011. Article 25 of the Constitution of the Islamic Republic of Pakistan provides equal protection of law to all citizens of Pakistan, but a highly discriminatory, bias and partial treatment was meted out to the petitioner. To the contrary when CJP Iftikhar Muhammad Chaudhry in Reference No.43/2009 filed against him felt that in presence of certain members of Supreme Judicial Council he will not be able to get a decision of his own choice, he immediately moved an application before SJC against those member judges and successfully got his matter transferred to Supreme Court on 07-5-2007 where his fellow judge Justice Bhagwadas was already waiting to give a decision in his fovor. Whereas, when the same ground was raised by the Petitioner, it was expressed by Mr. Justice Khalil-ur-Rehman Ramday in open Court that if anyone has no confidence on court he/she may go out of court.

(Copies of application of CJP Iftikhar Muhammad Chaudhry in Reference No.43/2007 and the order dated 07.05.2007 of the Supreme Court passed in Reference No.43/07 are filed herewith as Annexures “P” & “Q” respectively).

24.       Inconsistent point of view of CJP Iftikhar Muhammad Chaudhry, when he was restrained to work as Supreme Court Judge, apparently can be seen from his own statement made in an application before Supreme Judicial Council, wherein referring to Article 209 of the Constitution, he pleaded that under Article 209, he cannot be restrained to perform his duties. Subsequently, in judgment reported as PLD 2010 SC 61, authored by Mr. Justice Khalil-ur-Rehman Ramday, it was observed that no sitting judge of superior court can be restrained to work. While in spite of repeated requests, verbal as well as in writing, the Petitioner was not allowed to work as judge after 31.7.2009’s judgment in utter violation of the constitution.

(Copies of applications of the Petitioner to assign work dated 31.08.2009, 29.09.2009 & 04.11.2009 and the reply of the Registrar, Sindh High Court dated 29.03.2010 are annexed herewith as Annexures “R “, “S” , “T” & “U” respectively).

25.       In view of above submission, it is submitted with deep regret that the present CJP Iftikhar Mohammad Chaudhry and Judges of Supreme Court, who have already expressed their views inside and outside the Court against the Petitioner through their unanimous judgments have almost subverted the constitution of Pakistan to a much greater degree than the last Military President who is now facing High Treason Charges on similar grounds of removing judges unconstitutionally since the former removed far greater number of judges as compared to the latter.

(Copies of statements of CJP Iftikhar Muhammad Chaudhry published in Daily Jang dated 08.02.2009, 04.4.2009 and the decision taken by the CJP Iftikhar Muhammad Chaudhry in a joint meeting published in Daily Jang dated 23.08.2009 are filed herewith as Annexures “V”, “W” & “X” respectively).

26.       It is therefore requested that this reference may be dealt with and decided by a validly constituted Supreme Judicial Counsel as per constitution and the law.

 
27.       The facts of forgery committed by CJP Iftikhar Muhammad Churdhry brought forward with sufficient evidence makes out at a case of gross misconduct and extreme form of corruption against him as stipulated in Art 209 of Constitution of Pakistan, therefore it is requested that till decision of this reference service and pensionary benefits of all the respondent be withheld, otherwise the very purpose of filing of this reference will be frustrated.

28.       It is further requested that during the pendency of this reference, Supreme Court be directed not to victimize or initiate any action against the petitioner so as to hamper her from pursuing this reference in accordance with law and the constitution before a duly constituted Supreme Judicial Council.

29.       Before deciding the matter the petitioner may please be allowed a chance of personal hearing.
 

Petitioner

Justice (Retd.) Yasmin Abbasey

High Court of Sindh,

 Presently Posted as

Federal Ombudsman for Protection against Harassment of Women at the Workplace,

                                                       House # 5, Street # 113, Sector G-11/3,

                                                                                    Islamabad.
 
Dated:                                                

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