Leading counsel for the federation Malik Mohammad Qayyum has submitted before the Supreme Court that proceedings of the Supreme Judicial Council, its report to the President and removal of a judge by the President on the basis of SJC report could not be challenged in any court under Article 211 of the Constitution.
Qayyum continued his arguments in the apex court on Monday for the second day against the admissibility of petitions of Justice Iftikhar Mohammad Chaudhry and others questioning validity and legality of the Presidential Reference against the Chief Justice.
He read out Article 211 which says "the proceedings before the SJC, its report to the President and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any court." He also referred to several other Articles of the Constitution, which ousts jurisdiction of the courts to question validity of any proceedings in any court on the ground of any irregularity of procedure.
The court observed that the language of each Article is different, and, there is no blanket ouster of jurisdiction if an act is malafide, omnipotent or corum non judice.
Explaining the "proceedings before the Council," the counsel said that the initiation, and process of sending a reference to the President by the Prime Minister, President's direction to the SJC to inquire into conduct of a judge or orders passed by the SJC etc, and its inquiry report are part of the "proceedings".
The court asked the federation's counsel to indicate the forum where a judge removed as a consequence of a reference can file an appeal against the orders of the President, to which the counsel replied "None as in the case of a Supreme Court verdict.
The court observed that one can file a petition in the Supreme Day for the review of the Supreme Court judgement but it seems that in the case of SJC, one should only wait for the Day of Judgement.
During the day-long hearing, the court made a number of queries with regard to the constitutional status of Supreme Judicial Council, is it equal to the Supreme Court, or superior to the Supreme Court or below it, does it have powers of a court, is it domestic and administrative body, is its report binding on the President.
Qayyum maintained that the Supreme Judicial Council is creation of the Constitution with powers of a court, its functions are exclusive and unique since it is the only constitutional body which prepares code of conduct for the Judges and inquire into their conduct.
He said that role and responsibilities of the SJC can not be overtaken by any other forum that is why a bar of jurisdiction has been placed on other courts under Article 211. The court observed that under Article 186, the President "may refer a question to the Supreme Court to obtain opinion of the court", which means he can not give direction to the court.
But, in the case of the Supreme Judicial Council, the court pointed out, the President gives "direction to the SJC to inquire into the matter". The court further asked the federation's counsel to explain his position since he President has himself said that the Prime Minister sent him the reference against the Chief Justice, it was his constitutional duty to forward it to the Supreme Judicial Council to inquire into it.
Malik Mohammad Qayyum will continue his arguments on Tuesday. The 13-member full court headed by Justice Khalilur Rehman Ramday includes 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.