The Federal Government on Monday withdrew the charge of 'Judicial misconduct' in the reference against Chief Justice Iftikhar Mohammad Chaudhry.
During the course of hearing of CJP petition by Supreme Court, lead counsel for the Referring Authority, Syed Sharifuddin Pirzada, came on the rostrum and submitted that the President and the Prime Minister have instructed him to withdraw the charge of 'judicial misconduct' against the petitioner.
This decision of the government caused quite a sensation and surprise in CJP's camp, and Aitzaz was quick to respond that the Referring Authority could not withdraw charges against the CJP in piecemeal. "It should either withdraw the whole reference, or prove all charges in the court" he said.
One of the 13 Judges on the Full Bench of the Supreme Court, Justice Tassaduq Hussain Jilani, asked the counsel that as there was only one charge, of 'judicial misconduct' against the CJ, "if this is also withdrawn, then what is left in the reference?" Pirzada confirmed that after withdrawal of this charge, there is no other allegation of 'judicial misconduct' against the CJ.
It may be recalled that the government had accused the CJP of judicial misconduct, saying that in the open court he had announced one decision, while in the written judgement, opposite conclusion was recorded in some cases.
Referring to those judgements, Aitzaz pointed out that the CJ was not the only author of those judgements since other Judges, Justice Rana Bhagwandas, Justice Mohammad Nawaz Abbasi, Justice Hamid Ali Mirza and Justice Saeed Asshad were also with him on the benches which decided those cases.
Aitzaz contended that the government had not accused the other Judges on those benches of 'judicial misconduct', but had taken a discriminatory action against the CJP by filing the reference.
The 13-member full court comprises Justice Khalilur Rehman Ramday, 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, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.
Earlier, on the last day of his arguments, the Federation's lead counsel Malik Mohammad Qayyum had read out the allegations levelled against the CJP in the reference.
The charges included that the CJP insisted on protocol, used expensive cars, government helicopters and misused his authority to get his son Dr Arsalaan shifted from Health Department, Balochistan, to Federal Investigation Agency (FIA), and then to Police Department. When Aitzaz tried to explain something, the Court told him that he would be given full opportunity to rebut these charges.
Attorney General Makhdoom Ali Khan also started his arguments and emphasised that as far as the code of conduct and removal from office were concerned, there was no difference between a Judge and the Chief Justice in the Constitution. He argued that the Supreme Judicial Council is the competent forum to hear a reference against the Chief Justice.
However, Justice Khalilur Rehman Ramday observed that there was absolutely no doubt that the CJP and the Judges were not above accountability. He observed that the court was stuck with the problem that the Constitution does not provide a straight answer to the present situation when Chief Justice of Pakistan is under trial.
He said it has been stated in the court that the Chief Justice is the integral and inseparable part of the Supreme Judicial Council and it cannot be complete without him. He asked if the SJC is incomplete with CJ, "then which is the forum to try him? This is the basic question."
Justice Tassaduq Hussain Jilani referred to a recent statement of the author of SJC clause in the 1962 constitution that the framers of this clause never conceived that SJC would hold trial of CJP. Justice Ramday: "Every head of a Constitutional institution enjoys certain protection; therefore, the Supreme Court had to bend certain constitution conventions to create a forum for the accountability of the Chief Justice." The Attorney General will continue his arguments on Tuesday.