Dawn : SC verdict in CJ Iftikhar’s petition

Friday, July 20, 2007

SC verdict in CJ Iftikhar’s petition

ISLAMABAD, July 20 (AFP) - A 13-member bench of the Supreme Court of Pakistan headed by justice Khalilur Rehman Ramday Friday reinstated Chief Justice Iftikhar Mohammad Chaudhry through a majority verdict.

In a short order the full court set aside by a majority of ten to three the Reference that was filed by the President on March 9 on the advice of the Prime Minister against the chief justice under Article 209 of the Constitution.

The short order declared the petition of the chief justice filed under Article 184 (3) of the Constitution “unanimously maintainable.”

Three members of the bench -- Justice Faqir Mohammad Khokhar, Justice M.Javed Buttar and Justice Saiyed Saeed Ashhad -- dissented, holding the Reference valid.

The bench unanimously declared “ultra vires of the Constitution” the Presidential Order No 27 of 1970 under which the Chief Justice Iftikhar Mohammad Chaudhry was sent on forced leave.

Consequently the order passed by the President on March 15 regarding forced leave was also “unanimously declared to have been passed without lawful authority.”

The President's order of March 9 and the order of the Supreme Judicial Council, both restraining the chief justice from performing judicial functions, were set aside as being “illegal.”

“However, since according to the minority view on the question of the validity of the direction (the Reference) in question, the said Reference had been competently filed by the President, therefore, this court could pass a restraining order under Article 184 (3) read with Article 187 of the Constitution,” the order said.

According to the order appointments of Acting Chief Justices of Pakistan on March 9 and March 22 “are unanimously declared to have been made without lawful authority.”

“However this invalidity shall not affect the ordinary working of the Supreme Court or the discharge of any other constitutional and/or legal obligations by the honourable Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de facto doctrine,” the order said.

Regarding accountability of chief justice, the order said: “It has never been anybody's case that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication.”

All other legal and constitutional issues raised before the court would be answered in due course through a detailed judgement, the order said.

The order said: “By majority of 10 to 3 (Faqir Mohammad Khokhar, J, M.Javed Buttar, J. and Saiyed Saeed Ashhad, J. dissenting), this Constitution Original Petition No.21 of 2007 filed by Mr. Justice Iftikhar Muhammad Chaudhry, the Chief Justice of Pakistan, is allowed as a result whereof the above-mentioned direction (the Reference) of the President dated March 9, 2007 is set aside.

“As a further consequence thereof, the petitioner CJP shall be deemed to be holding the said office and shall always be deemed to have been so holding the same.”

The bench comprised Justice Khalil-ur-Rehman Ramday, Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Mian Shakirullah Jan, Justice M.Javed Buttar, Justice Tassaddaque Hussain Jillani, Justice Saiyed Saeed Ashhad, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Ch.Ijaz Ahmed, Justice Syed Jamshed Ali Shah, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.