Full Supreme Court or new SJC can hear reference: government counsel makes offer

In a major development in the hearing of reference against Chief Justice of Pakistan, the government on Thursday offered that each of two forums- the Full Supreme Court or a reconstituted five-member Supreme Judicial-can hear the reference against Chief Justice Iftikhar Mohammad Chaudhry.
Counsel for the Federation Malik Mohammad Qayyum, who started the government rebuttal, stated at the outset of the proceedings that he has instructions from his client (President and the Federation) that the Referring Authority has no objection to any of the two forums.
It may be recalled that the CJP had objected to the inclusion of two Judges (Justice Javed Iqbal and Justice Iftikhar Hussain Chaudhry) in the SJC on account of allegedly being beneficiary of his removal and personal animosity and bias.
Qayyum said the government has allowed him to make an offer that the Full Supreme Court can change all the five members of the SJC and nominate new judges on the council to decide the case on the basis of material of the reference. Justice Ramday observed: "How can the court do it since members of the SJC are mentioned in Article 209 of the Constitution".
Qayyum replied: "I have also been allowed to submit that the Full Supreme Court decide this case and we place all the record before it". Justice Nasirul Mulk remarked "the court is yet to decide its jurisdiction in this case, it cannot work according to wishes of the parties".
Justice Ramday remarked, "you should make this offer to the other party, if it accepts then we will think about it."
He said if the Full Supreme Court is to decide this case, then the court will go back on the morning of 9th March when there was no reference, no forced leave orders, and no oath taking of an Acting Chief Justice. Malik Qayyum replied that the court should decide the case on merits, that is why he wanted adjournment till Monday so that he could seek instructions from the higher-ups.
He submitted that the court should examine the record of the reference and decide where the government should go for the accountability of the CJP. In his rebuttal the Federation's counsel stated that the reference is not based on reports of the Intelligence Agencies but on the evidence of newspaper reports about the CJ.
He said it is not the job of the President to collect and verify evidence since he is a neutral person, but on the basis of the newspapers governments were dismissed in the past.
Justice Ramday remarke, "it is the responsibility of the Federation to scrutinise evidence of allegations against a high functionary of the State before taking any adversarial action." Qayyum argued that Chief Justice is also a Judge and enjoys protection under Article 209 of the Constitution and cannot be removed in any other manner. He said while reviewing the NAB Ordinance, the court has already held that Judges cannot be tried under NAB ordinance since they are protected under Article 209.
He argued that if Chief Justice is taken out of the ambit of this Article, then he would be tried under NAB Ordinance. He disclosed that at one time, the government was thinking to register a case against the Chief Justice under the NAB ordinance, but Article 209 protected him. Further hearing will continue on Monday.
The 13 member full court headed by Justice Khalilur Rehman Ramday comprises 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.