"We have to do our job, don't worry nobody can influence us," Justice Khalilur Rehman Ramday, heading the 13-member full bench, said while responding to the concerns expressed by the defence lawyer Atezaz Ahsan. Earlier, another senior judge, Justice Javed Iqbal who was not part of the bench expressed similar sentiments after taking oath as Acting Chief Justice, to hold charge during the absence of Justice Rana Bhagwandas, who went to Malaysia to attend a conference on judiciary.
Ahsan argued before the court whether President General Pervez Musharraf, before exercising his right to file the reference against Chaudhry, was honest in making his mind.
"The court has to see that the opinion of the President was arbitrary or perverse."
He said if the Chief Justice is removed on the recommendation of the Prime Minster, it would become a precedent for the future and any Judge of the apex court can be removed in this way. He said the issue before the Supreme Judicial Council, is small and simple one as it can only examine that certain judge has committed a misconduct or not.
Ahsan pleaded that the SJC has a narrow course of inquiry. "If it exonerates a judge, yet it cannot say the action of the President was based on mala-fide," he said.
He said the Constitution of Pakistan provides discretionary powers to the President to dissolve the assembly. But in some cases the Supreme Court had exercised its jurisdiction over the discretionary powers of the President.
Referring to Haji Saifullah and Nawaz Sharif cases, he said the court gave its decisions against the powers of the President. Ahsan advocated that if any action is taken without jurisdiction and with malafide intention the court can exercise its powers.
He said throughout in our history the courts had legitimised the action of the military dictators by saying that there can be constitutional deviation. "How many times we have to validate and protect the action of Martial Law governments," the defence lawyer said. Justice Ramday remarked that validation or ouster clauses are only inserted in the Constitution when the country is in the state of war.
Ahsan said martial law could only be imposed on an occupied territory. He said the reference was made up in a haste that is why the President was made a party in the petition of the chief justice and the judges are made through the registrars of the court.
Ahsan was arguing the case when the court's time ended. The court adjourned the hearing till Tuesday.
