ISLAMABAD, May 24: Justice Khalilur Rehman Ramday, who is heading a 13-member larger bench hearing identical petitions challenging a reference against Chief Justice Iftikhar Mohammad Chaudhry, on Thursday suggested opening of the ‘closed alley’ for superior court judges who are removed by the Supreme Judicial Council.

“Even remedy is available to a peon or a clerk if removed from service,” Justice Ramday observed and proposed that the bench might consider providing an appellate forum at a later stage to revisit findings of the SJC if it recommends removal of superior court judges.

Such a mechanism might provide an outlet or some kind of a valve because a judge, when removed, found himself in a closed alley and had to bow down to the decision of the council, Justice Ramday observed.

“That is why I am arguing that the petition of the chief justice is maintainable since no alternative remedy is available to him,” Barrister Aitzaz Ahsan quipped by moulding the observation of the court in his favour. He emphasised that a clerk and a peon not only had the opportunity to appeal through the service tribunal, but they could not even be suspended without a statutory provision.

Barrister Ahsan argued that the chief justice was not above accountability and said that when the president could be impeached or a vote of no-confidence could be brought against the prime minister then how could the chief justice not be held answerable?

“What I am objecting is the forum,” he said and cited two famous cases — the Al-Jihad Trust commonly known as judges’ case and the Malik Asad Ali case — to substantiate his point.

In the judges’ case, the Supreme Court had held that the SJC without the chief justice could not be constituted while in the Malik Asad case, it was held that the accountability of the chief justice did not fall within article 209 of the Constitution under which proceedings were held against judges.

“Trial of the chief justice is always done by the full court similar to the present one,” Barrister Ahsan said, adding that the bench should be cautious while deciding the case since whatever this larger bench decided would be followed in future for all times to come.

Justice Ramday conceded that the bench had no margin of error and expressed the desire that both parties emerged victorious. “No sir, one party will definitely be the loser and the other winner,” Mr Ahsan said.

“We pray that the country and the nation come out as victors,” Justice Ramday said.

Justice Ramday observed that he was not comfortable with the allegations of mala fide against superior court judges as mentioned in the petition of the chief justice.

At this point, Justice Mohammad Nawaz Abbasi asked if it would be proper to raise allegations of mala fide against judges who were not “before us”.

Barrister Ahsan replied that the SJC was one of the respondents in the petition of the chief justice and the council through the registrar had already submitted its reply before the court and had taken an adversarial stance by opposing the petition on maintainability.

He argued that a member of the council who himself was liable to be disqualified could not sit on the SJC and alleged that one of the members was not even on handshaking terms with the chief justice and had never taken notes despite the fact that he had argued before the SJC for almost 18 hours.

“We have a specific complaint against him and intended to file an affidavit before the council,” he said.

Attorney General Makdoom Ali Khan explained that the member never took notes of either side and still he had a very good memory and never missed any point.

When executive’s role in judicial affairs was mentioned, Justice Nawaz Abbasi recalled that 40 judges had been laid off through a single press note by the executive in the past.

As a direct consequence, Barrister Ahsan recalled the Benazir Bhutto government was dismissed in 1990 and one of the charges against her government was interference in the affairs of the judiciary.