The Supreme Court has observed that judges should have a right of appeal against their removal under Article 209 on the recommendation of the Supreme Judicial Council (SJC). The full Supreme Court bench made this observation during hearing of petition of Chief Justice of Pakistan and others challenging Presidential Reference against the CJ and subsequent steps taken by the government.
The head of the 13-member full Supreme Court, Justice Khalilur Rehman Ramday, observed: "a peon, a clerk has a tribunal/forum to make an appeal against his dismissal or termination, but under the present Constitution scheme there is no forum available to a judge if he is removed from his office.
Article 209 (6) says: "if, after inquiring into the matter, the SJC reports that it is of the opinion that the judge has been guilty of misconduct and that he should be removed from office, the President may remove the judge from the office. Justice Ramday observed that if the President removes the judge, there is no remedy or recourse is available to him and all doors are closed to him.
Justice Mohammad Nawaz Abbasi pointed out that if an employee of the Supreme Court is dismissed or terminated on the orders of the Chief Justice, even he has a right of appeal in the service tribunal. He said that Army personnel have also been given this right of appeal, which was not available to them in the past.
He said once through one Press Note nearly 40 judges of the Lahore and Sindh high courts were removed and they had no forum of relief against the Executive Order. Justice Ramday also observed if a right of appeal had been given to the judges of the superior courts, like full Supreme Court, the nation would not have faced the current judicial problems.
He also said: "In these circumstances there is no margin of error for the Supreme Judicial Council in forming its opinion about the conduct of a judge or his incapability to perform the duties of his office." He prayed that Allah Almighty may grant the court strength and wisdom to give such a judgement which is good for the nation.
Earlier, leading counsel for CJP, Aitzaz continued his day-long submissions on the question of maintainability of the petitions and focused his arguments on the role of the Supreme Judicial Council, its constitution, dis-qualification of certain members of the Council and jurisdiction of the Supreme Court even in matters where jurisdiction is ousted.
He said that Article 211 says the courts cannot call in question "proceeding before the Council, its report to the President and the removal of a Judge." He, however, argued that the processes prior to sending the Reference to the SJC do not form a part of its proceedings.
He said the court can take cognisance of various stage of preparation of the reference by the Law Ministry, its approval by the prime minister, forming of opinion by the President on the basis of the reference, composition of the SJC, suspension of the CJP, his confinement at Army House and his residence appointment of an acting Chief Justice, orders of SJC to restrain the CJP to perform functions of his office, etc.
Aitzaz said the SJC is not a judicial body or a court since its only function is to give its opinion after inquiry of the reference whether a judge has been guilty of misconduct and the President may or may not accept its findings.
He also argued that the SJC has taken an adversarial position in its reply to these petitions and has opposed its admissibility in the Supreme Court. He submitted had the SJC been a court it would not have become a party in another court and taken an adversarial position.
Aitzaz argued the SJC is not constitutionally constituted as its three members are disqualified to hear a reference against the Chief Justice because their bias against him. Justice Ramday remarked: "one can understand that if the CJP is removed, one member of the SJC would become CJP, but what is the bias or personal interest of the other members."
Aitzaz alleged that one member (CJ Lahore High Court) has so much bias against Justice Iftikhar that he has not been even on speaking terms with the CJP in the recent past and refused to shake hand with him. "I addressed the SJC for 18 hours during its five sittings but the said member did not take a single note or write a word about my submissions."
He said: "I requested him to please take notes of my submissions and the court may ask the Attorney General about truthfulness of my statement, who was present during the proceedings. When asked by the court, the AG, confirmed the submission, but added that the honourable judge did not take notes of either side and said that he has a good memory and does not need notes.
Aitzaz cited several judgements of the superior courts to prove that despite ouster clauses in the Constitution, the courts can hear a petition if there was mala fide, violation of the Constitution, curom non judice on the part of the government/Executive. He will continue his arguments on Friday.
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.