After a 70 days' marathon hearing, the 13-member Full Supreme Court on Friday accepted the petition filed by Justice Iftikhar Mohammad Chaudhry and reinstated him as Chief Justice of Pakistan.
In its short order, the court set aside the Reference of the President dated March 9, 2007, and said: "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 court held the Judges (Compulsory Leave) Order of 1970 as ultra vires of the Constitution, meaning thereby that the Executive has no powers to send Judges of the Superior Courts on compulsory leave. The court unanimously set aside the two orders of the President and the Supreme Judicial Council dated 9.3.2007 to restrain the CJP as being illegal.
The court also unanimously held that the appointments of the Acting Chief Justices on 9.3.2007 and 22.3.2007 were made without lawful authority. The court said: "It has never been anybody's case before us that the Chief Justice of Pakistan was not accountable. The same issue, therefore, does not require any adjudication."
Three Judges, Justice Faqir Mohammad Khokhar, Justice M. Javed Buttar and Justice Saiyed Saeed Ashhad, dissented with the majority view on the question of validity of the reference issued by the President under Article 209 (5) of the Constitution.
Immediately after the announcement of the judgement, at about 4.15 pm, Chief Justice Iftikhar Mohammad Chaudhry assumed his office. The courtroom was jam-packed by lawyers from all over the country who had launched an unprecedented and historic movement for the reinstatement of the CJP and independence of Judiciary.
The lawyers were overwhelmed by joy after hearing one of the most unambiguous and clear verdicts of the court, and said that the judgement has laid solid foundation for independence of judiciary
Earlier, after closing the hearing, the Presiding Judge, Justice Khalil ur Rehman Ramday, regretted that a very responsible politician irresponsibly had described this case as a tussle between the Army and the Judiciary. He said those who won should offer thanksgiving 'Nowafil', and those who lost should not feel angry.
All TV channels, Aaj, Geo, ARY and PTV gave daylong live coverage to the proceedings of the court. The 13-member full court comprised 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.
Following is the full text of the short order: "For detailed reasons to be recorded later, the following issues arising out of this petition are decided as under:
"(I) MAINTAINABILITY OF COP NO.21 OF 2007 FILED UNDER ARTICLE 184(3) OF THE CONSTITUTION This petition is unanimously declared to be maintainable.
"(II) VALIDITY OF THE_DIRECTION (THE REFERENCE) ISSUED BY THE PRESIDENT UNDER ARTICLE 209(5) OF THE CONSTITUTION "By a majority of 10 to 3 (Faqir Muhammad Khokhar, J, M. Javed Buttar, J, and Saiyed Saeed Ashhad, J, dissenting), the said Direction (the Reference) in question dated March 9, 2007, for separate reasons to be recorded by the Hon. Judges so desiring, is set aside.
"(Ill) VIRES OF JUDGES (COMPULSORY LEAVE) ORDER BEING PRESIDENT'S ORDER NO.27OF1970 AND THE CONSEQUENT VALIDITY OF THE ORDER DATED_15.3.2007 PASSED BY THE PRESIDENT DIRECTING THAT_THE CJP SHALL BE ON LEAVE "The said President's Order No 27 of 1970 is unanimously declared as ultra vires of the Constitution and consequently the said order of the President dated 15.3.2007 is also unanimously declared to have been passed without lawful authority.
"(IV) VALIDITY_OF THE ORDER OF THE PRESIDENT DATED 9.3.2007 AND OF THE ORDER_OF THE SAME DATE OF THE SUPREME JUDICIAL COUNCIL RESTRAINING THE CJP FROM ACTING AS A JUDGE OF THE SUPREME COURT AND / OR CHIEF JUSTICE OF PAKISTAN "Both these orders are, unanimously, 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.
"(V) VALIDITY OF THE APPOINTMENT OF THE HON'BLE ACTING CHIEF JUSTICES OF PAKISTAN IN VIEW OF THE ANNULMENT OF THE TWO RESTRAINING ORDERS AND THE COMPULSORY LEAVE ORDER IN RESPECT OF THE CJP "The appointments in question of the Hon'ble Acting Chief Justices of Pakistan vide notification dated 9.3.2007 and the notification dated 22.3.2007 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 Hon'ble Acting Chief Justices of Pakistan during the period in question and this declaration is so made by applying the de facto doctrine.
"(VI) ACCOUNTABILITY OF THE HON'BLE CHIEF JUSTICE OF PAKISTAN "It has never been anybody's case before us 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 us shall be answered in due course through the detailed judgement/judgements to follow.
"ORDER OF THE COURT "By majority of 10 to 3 (Faqir Muhammad Khokhar, J , M. Javed Buttar. and Saiyed Saeed Ashhad, dissenting), this Constitution Original Petition No 21 of 2007 filed by Mr Justice lftikhar Muhamrnad 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 other connected petitions shall be listed before the appropriate Benches, in due course, for their disposal in accordance with law." In this petition the CJP panel of lawyers included Aitzaz Ahsan, Hamid Khan, Ali Ahmad Kurd, Munir A. Malik, Tariq Mahmood, and Qazi Anwar.
Veteran jurist Syed Sharifuddin Pirzada appeared before the court on behalf of the Referring Authority (President). Retired Judge Malik Mohammad Qayyum argued on behalf of the Federation and Attorney General Makhdoom Ali Khan addressed the court on notice.
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