ISLAMABAD, May 16: The Supreme Court hearing identical petitions against the filing of a reference against the chief justice — including that of Chief Justice Iftikhar Mohammad Chaudhry — on Wednesday wondered if the Supreme Judicial Council could interpret constitutional issues other than examining the conduct of a judge and suggesting his removal.

“Can the SJC, described to be an administrative or a domestic forum by the government counsel, interpret constitutional issues especially when important questions like immunity provided to the chief justice from proceedings before the council have been raised by the petitioner,” Justice Khalilur Rehman Ramday observed, asking who would answer these questions — the SJC or the Supreme Court.

Justice Ramday is heading a 13-member bench to adjudicate upon a set of 23 petitions challenging the filing of the reference against the chief justice, composition of the SJC and its competence to try the chief justice.

The arguments advanced by government lawyers — Sharifuddin Pirzada, Attorney-General Makhdoom Ali Khan and Maqbool Ellahi Malik — focussed around the maintainability of the petitions, arguing that actions of the president under Article 248 of the Constitution were protected and could not be called in question, therefore the name of President Pervez Musharraf from the chief justice’s petition as a respondent should be removed.

Mr Pirzada argued that the petition was misconceived and premature because the proceedings before the council were pending and the council’s proceedings and report and removal of the judge by the president could not be challenged.

According to Justice Chaudhry Ijaz Ahmed, the SJC was a constitutional body, but its proceedings were administrative in nature, which sits to suggest removal of the judge through a report to the referring authority (the president).

Justice M. Javed Buttar said the council could not give its opinion on constitutional issues and its report was confined to the incapability of the judge to perform his function due to misconduct and his removal from the office.

From where the council derived authority, Justice Ramday asked, if it had the jurisdiction to try the chief justice.

When Justice Mohammad Nawaz Abbasi asked the attorney-general about the council’s power to initiate contempt action, Justice Ramday observed that even the ombudsman, chief election commissioner and religious ombudsman as suggested in the NWFP government’s Hasba Bill enjoyed such powers but this did not mean that these forums could also interpret the Constitution.

“This is once in a life time cases in our national history,” Justice Ramday observed, adding that even the president was not bound to act on the recommendation of the SJC.

“Though the members sitting in the council are very senior to us and we feel handicap in their absence, but the fact of the matter is that the council has no inherent power to decide constitutional matters,” Justice Ramday explained.

In my opinion, the attorney-general said, the recommendation of the council was binding on the president and referred to the 1994 Sabir Shah case in which the apex court had held that a tribunal enjoyed the power to interpret the vires of statutes, except those laws under which it was created. The questions raised before the apex court through petitions had already been raised before the SJC, he said.

To establish why contempt powers were granted to the SJC and why compulsory leave order was introduced in 1970, Mr Pirzada referred to four references filed against Justice Ali Hasan Agha in 1951, Justice Iklaque Hussain during the Gen Ayub Khan period in 1960, Justice Shaukat Ali and Justice Fazal Ghani during the Gen Yahya Khan tenure in 1969 and against Justice Safdar Ali Shah during the Gen Ziaul Haq period.

Only Justice Ali Hasan Agha was exonerated from the charges of misconduct, Justice Ikhlaque Hussain was removed and other judges resigned, he said.

At this, Justice Ramday observed that the common factor in the three references in which the judges were either removed or resigned was that these were filed during the martial period and the one in which the judge was exonerated was moved during a civilian government.

Mr Pirzada cited Ziaur Rehman, Saeed Ahmed Khan, Mustafa Khar and Sabir Shah and Farooq Leghari cases to establish that the protection provided to the president, governors and ministers etc. could not be ignored and that only accountability could ensure confidence among the people on the judiciary.In a written statement filed in the court, Mr Pirzada also denied allegations levelled by the petitioner’s counsel that the chief justice was detained for over five hours at the president’s Rawalpindi camp office when he declined to resign on March 9 and was allowed to leave only after the swearing in of the acting chief justice.

He also denied that there was any restriction on the movement of the chief justice and alleged that the official residence of the chief justice had become a centre of political activity.