The Presiding Judge of the 13-member Full Bench of the Supreme Court, Justice Khalilur Rehman Ramday, hearing the petition of Chief Justice, said on Tuesday that extra-constitutional measures were used to remove Judges of the superior courts, including three Chief Justices of Pakistan, in the past.
He made this observation when senior counsel of the Federation, Malik Mohammad Qayyum, emphasised that Supreme Judicial Council is the only forum to remove Judges, including the Chief Justice, from their offices.
Justice Ramday inquired from the counsel, "How many Judges have been 'butchered' since 1979 by the executive authority through extra-constitutional instruments?"
Malik Qayyum, who had resigned as Judge of the Lahore High Court, replied that the Judiciary was also responsible, since Judges took oaths under Provisional Constitution Orders of Martial Law Administrators and Executives.
Justice Ramday remarked: "Might and coercive powers were used in 1977, 1980, 1981 and 1999 to remove Chief Justices Yaqoob Ali Khan, Justice Anwarul Haque, and Justice Saeeduzzaman Siddiqui, and a large number of judges of the Superior Courts, and now the court is hearing the case of Chief Justice Iftikhar Mohammad Chaudhry".
Justice Mohammad Nawaz Abbasi observed that it was the first time that the Executive (government) has invoked Article 209, and constituted Supreme Judicial Council to decide the case of Chief Justice.
Justice Ramday observed: "Even sacred name of Islam was used with ulterior motives to shunt out the Judges, here and there, under Article 203". Malik Qayyum submitted that acts and laws promulgated by Martial Law Administrators were validated by the new Parliaments, and those laws became part of the Constitution.
Earlier, in his rebuttal, Qayyum argued that Supreme Judicial Council "is the only forum for accountability" of the Chief Justice and Judges of the Supreme Court. Justice Ramday observed: "There is no dispute that CJ is not above accountability, and he is also a Judge of the Supreme Court". However, he inquired that since Chief Justice is an integral part of the SJC, "can SJC be properly constituted without the CJ, and which is the proper forum to hold accountability of the CJP".
Qayyum reiterated that SJC is the only forum for accountability of the CJ. "However, though he still remains CJP, he should not sit on the SJC, since no one can be a judge of his own cause". Justice Ramday remarked: It is very strange that he remains Chief Justice, but he cannot open his Chamber; cannot use his official car. I have not seen the national flag on the building of CJP residence since 9th March 2007."
Malik Qayyum also briefly addressed the court on the question of formation of 'opinion' by the President. He said that it was the Prime Minister, and not the President, "who has to form an opinion" to send or not to send a reference against a judge to the Supreme Judicial Council.
The hearing will continue on Wednesday. The 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.
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