The 13-member full bench of the Supreme Court resumed hearing of the Chief Justice Iftikhar Mohammad Chaudhary's petition challenging the legality of the President's reference and sending him on forced leave on Monday.
Continuing his argument, counsel for the CJP, Aitzaz Ahsan said PO 27 (Judges Compulsory Leave) Order 1970 is a dead law which could not be resurrected after 37 years to send the Chief Justice or any judge of the Superior Courts on forced leave.
He said that this order was passed in 1970 by another dictator Yahya Khan-declared "Usurper" by the Supreme Court-to send two judges facing charges of misconduct on forced leave. He submitted that after promulgation of 1972 Provisional Constitution, all the orders issued by Yahya Khan were declared illegal.
He argued that PO 27 is also in conflict with the 1973 Constitution as judges can only be removed under Article 209 but they cannot be sent on forced leave. Justice Ramday remarked "If you think it in conflict with the Constitution, then why should the court go into vires of this law?"
Aitzaz replied that in "Al-Jehad" case it was declared not a valid law though Syed Sharifuddin Pirzada (counsel for the President) has resurrected it so that the government could send judges on forced leave. He described this law an attack on the independence of judiciary and a tool in the hands of the executive to control and blackmail the judges.
Aitzaz said that the Supreme Court held it a valid ground for dismissal of the Benazir Bhutto government and dissolution of the assemblies by President Farooq Leghari in 1996 that the government had conceptualised a law to send a judge on forced leave if 32 members of Parliament make such a request. He argued that court thus considered sending a judge on forced leave by the legislature an encroachment upon the independence of judiciary. He said during the hearing, then counsel Khalid Anwar described this proposal " pitching a judicial lamb against the executive lion"
Justice Ramday (in a lighter vein) Do you consider us lambs? Aitzaz replied " My Lord, it depends upon your decision on CJP's plea. Justice Ramday observed it depends on a Judge whether he considers himself a lion or a lamb.
Aitzaz said that the government has admitted that the Reference against the Chief Justice is based on intelligence agencies reports "tapping of telephones of the judges or even of citizens has already been held an illegal activity and against fundamental rights of the citizens" he added.
He said he was not against accountability of the Judiciary, but in this process there should be no discrimination. Aitzaz will continue his arguments on Tuesday.
The 13-member full court headed by Justice Khalilur Rehman Ramday includes Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, , Justice Mian Shakirullah Jan, Justice M. Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Sayed Saeed Asshad, Justice Nasirul Malik, Justice Raja Fayyaz Ahmad, Justice Chaudhry Ejaz Ahmad, Justice Sayed Jamshed Ali and two ad hoc judges, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.
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