April 01, 2007	Sunday	Rabi-ul-Awwal 12, 1428

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ISLAMABAD, March 31: Two separate benches of the Supreme Court will take up on Monday a challenge to the appointment of a non-Muslim as the acting chief justice and the formation of the Supreme Judicial Council hearing a reference against “non-functional” Chief Justice Iftikhar Mohammad Chaudhry.

Justice Rana Bhagwandas, being the senior-most judge of the Supreme Court, assumed the top judicial office on March 24.

Justice Javed Iqbal, heading Bench-II, will take up the petition of Shahid Orakzai, who has pleaded before the court to declare that religious status of a citizen should take precedence over his seniority as a judge of the apex court to act as the acting chief justice.

The second bench, comprising Justice Sardar Mohammad Raza Khan, Justice Chaudhry Ijaz Ahmed and Justice Hamid Ali Mirza, will hear the petition of Barrister Zafarullah Khan, who has sought a declaration from the court that the acting chief justice should not head the SJC and that a reference of misconduct cannot be filed against a sitting chief justice.

The two petitions were filed on Wednesday last.

Mr Orakzai has drawn attention towards Article 2 of the Constitution (Islam to be state religion), which, according to him, requires religious status of a citizen acting as the chief justice under Article 180 (acting chief justice) to take precedence over his seniority of service as a judge of the Supreme Court.

The appointment of Justice Bhagwandas as the ACJ, he contended, was misreading of Article 180 of the Constitution, which did not allow a non-Muslim to act in place of a Muslim citizen.

Barrister Zafarullah in his petition relied on a judgement of the Supreme Court (PLD 1996 P-324SC Al-Jihad Trust case) wherein it was held that “acting chief justices are allowed to function for a short time and in the absence of permanent chief justice the composition of the Supreme Judicial Council becomes imperfect and the body as such becomes non-functional”.

The Chief Justice of Pakistan was available, his office was not vacant and he was not on leave nor could he be suspended or removed like other judges of the superior judiciary, said the petitioner. Besides, the question of his inability to perform the function should be determined by the Supreme Court and not by the executive, he contended.

He also sought exclusion of those judges from the SJC against whom references of misconduct were pending.

The petition prays that the formation and composition of the present SJC under the acting chief justice be declared unlawful, illegal and unconstitutional.

The federal government, the Ministry of Law and the Supreme Judicial Council are respondents in the petition.