ISLAMABAD, April 16: The government conceded before the Supreme Court here on Monday that it still considered Justice Iftikhar Mohammad Chaudhry to be the Chief Justice of Pakistan.
“He is still the chief justice but the SJC has passed some restraining orders against him,” advocate Malik Qayyum, representing the government, told a three-member bench hearing identical petitions challenging formation of the SJC and President Pervez Musharraf’s move to forward a reference against Justice Chaudhry.
The issue cropped up when Barrister Farooq Hassan moved two applications before the Supreme Court requesting it to direct the media not to use the phrase ‘non-functional’ for Justice Chaudhry and hold open proceedings of the council. The SJC is not competent, he said, to declare the sitting chief justice as non-functional or suspended.
The bench comprising Justice Sardar Mohammad Raza Khan, Justice Chaudhry Ijaz Ahmad and Justice Hamid Ali Mirza took up five petitions filed by the Watan Party through Barrister Zafarullah Khan, ‘Adliya Bachao Committee’ through Dr Farooq Hassan, Jameel Ahmad, Mohammad Rafi Siddiqui and advocate Mujeeb Pirzada.
The court decided to club all the petitions and directed Attorney-General Makhdoom Ali Khan to provide a copy of the reference against the ‘non-functional’ chief justice.
At the last hearing, the bench had served notices on the president’s secretariat, SJC and the federal government through the Ministry of Law. The SJC secretary, who happens to be the registrar of the Supreme Court, was also not in attendance today.
In his freshly-moved applications, Barrister Hassan contended that no such words or concepts like non-functional, suspended or forced leave were available in the Constitution, besides the SJC merely acted as an inquiry committee on being asked by the executive. “It will be in the supreme interest of judicial integrity of the country that these words be avoided by the media while addressing any matter involving the CJP,” the applications asked.
He also requested the court to direct the SJC to hold open proceedings in the reference in the interest of justice because it was consistent international and UN law since 1952 that though trials of judges were held in-camera, but not if the victim desired otherwise.
Advocate Pirzada in his petition pleaded before the court to reinstate the chief justice forthwith and declare his suspension in violation of Article 209 of the Constitution.
He also pleaded before the court to declare that in the absence of a sitting chief justice, proceedings of the SJC were coram-non-judice (without any jurisdiction). The reference against the chief justice, he emphasised, amounted to colourable exercise of authority and mala fide, hence void.
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 were allowed to function for a short time and in the absence of a permanent chief justice, the composition of the SJC becomes imperfect and the body as such becomes non-functional.”
The court adjourned the matter for April 24 when Malik Qayyum sought time to seek instructions and submit replies on the petitions by the government.
