April 08, 2007	Sunday	Rabi-ul-Awwal 19, 1428

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ISLAMABAD, April 7: The Supreme Court was asked here on Saturday to declare that the Holy Quran and the Constitution did not bar the appointment of a non-Muslim as the acting or permanent chief justice and that a sitting chief justice could not be suspended or sent on forced leave.

Two petitions were filed before the Supreme Court, one by Maulvi Iqbal Haider and the other by the Communist Party of Pakistan through its chairman Jameel Ahmad Malik.

Maulvi Haider filed the petition in the backdrop of a Supreme Court hearing against the appointment of Justice Rana Bhagwandas as the acting chief justice for being non-Muslim.

In his petition, he pleaded that ACJ Rana Bhagwandas enjoyed all fundamental rights guaranteed both by the Holy Quran and the 1973 Constitution to become either the acting or permanent chief justice.

Article 8 of the Constitution, he contended, assured to declare any law inconsistent or in derogation with fundamental rights to be void. This meant that the state could not make laws that took away or abridged the rights so conferred and any law made in contravention of this clause, he stated.

The framers of the Constitution, he said, had deliberately incorporated the provision of “Muslim judges” in the Constitution wherever it was felt necessary and where such necessity was not felt, the word Muslim was not used.

Article 4 of the Constitution also guaranteed that no action detrimental to the life, liberty, reputation or property of any person could be taken and that no person could be prevented from or be hindered in doing what had not been prohibited by the law, the petitioner said.

Article 25 of the Constitution, he maintained, held all citizens to be equal before the law and they were entitled to equal protection of law and there should be no discrimination. Likewise, Article 27 also guaranteed that no citizen otherwise qualified for appointment in the service of Pakistan should be discriminated on the basis of race, caste, religion or sex. Any order to decline the appointment of the ACJ on the basis of religion through any notification would be illegal and arbitrary, he stressed.

Mr Malik in his petition pleaded to reinstate Chief Justice Iftikhar Mohammad Chaudhry.

He raised three legal points in his petition. He stated that the president did not have the authority to suspend or make the chief justice non-functional or any other judge merely on the plea that a reference was pending against him, besides such powers were also not granted to the SJC under Article 209. The president, he said, could not send the chief justice on forced leave under the Judges Compulsory Leave Order, 1970, when a reference was pending against him.

In his petition, Mr Malik revealed that Justice Chaudhry had ordered day to day hearing to an election tribunal headed by Justice Sayed Zahid Hussain of the Lahore High Court in an election petition against Prime Minister Shaukat Aziz.