ISLAMABAD, July 10: A Supreme Court bench hearing the petition of Chief Justice Iftikhar Mohammad Chaudhry on Tuesday pulled up the government lawyer for implying that the chief justice lacked the qualities that inspired confidence among people.

“What more evidence do you need to test the confidence the people have in the CJ since March 9 (when the CJ was restrained from performing judicial functions by the president)?” Justice Khalilur Rehman Ramday, who heads the 13-member bench, asked Advocate Malik Mohammad Qayyum.

Malik Qayyum had told the bench that independence of the judiciary did not lie in independence of judges, but in the quality of judges. He said a good judge should be strong, pristine and pure, adding: “The quality of a judge is to inspire confidence among the public.”

Malik Qayyum argued that the Presidential Order 27 [Judges (Compulsory Leave) Order 1970] had been validated under Article 270 of the Constitution by Validation of Laws Action 1975. Therefore, he said, PO 27 could not be questioned before any court and any order passed under it was valid. The counsel was referring to the March 15 presidential order sending the chief justice on compulsory leave.

Throughout the hearing, the courtroom resonated with incessant sound of explosions coming from the Lal Masjid-Jamia Hafsa complex, about 1km away.

At the outset, Supreme Court Bar Association president Munir A. Malik appeared before the bench to clarify his reported “scandalous statement”. He said he had been quoted out of context because he had stated in his telephonic interview to a private TV channel that any adverse statement would inflame the minds of the judiciary as well as the legal fraternity.

However, Justice Ramday asked him to submit in writing whatever he wanted to say and ordered the court staff to provide a copy of the CD, its transcript and press clippings relating to the interview he had given to the TV channel.

Mr Malik had allegedly told the TV channel: “If the judgment of the court does not satisfy the people, they will burn down the Supreme Court building.”

Malik Qayyum faced a barrage of observations and questions from the bench, with Justice Ramday explaining that questions were being asked because he was arguing the most difficult and sensitive subject of compulsory leave. “Since you are the active party in this role, therefore you are being questioned more.”

He said that under Article 209, the president could only set the law in motion and it was the judiciary that could remove a judge. “This is also evident from the fact that we are arguing before the court for the last three months.”

“Keep this in your mind that you are not here because of us, but because of your own doings,” Justice Ramday observed.

Malik Qayyum maintained that the president had no power to send a judge on leave, except under PO-27, saying the law was not in conflict with Article 209 and, therefore, any judge against whom a reference was moved could be sent on leave or restrained from performing his functions.

He said sending a judge on forced leave did not mean his removal or suspension, adding that removal meant complete deprivation of the office and, therefore, it was not a temporary arrangement or restraining a judge from exercising his powers. Removal should be distinguished from temporary restraint because these measures did not result in vacation of the office, he said. Temporary restraint or suspension did not mean removal of a judge because he still could hold the office, though he might not be exercising his powers, he added.

However, he conceded that judges could be removed, but not sent on leave under Article 209.

The counsel emphasised that judges were also in the public service under Article 260 of the Constitution, like any other person in the said service, though they were not civil servants. “Whatever is applicable to any person in public service would equally apply to them, except where the Constitution ordains otherwise.”