ISLAMABAD, May 28: Justice Khalilur Rehman Ramday, heading a 13-member bench of the Supreme Court hearing identical petitions challenging the presidential reference against Chief Justice Iftikhar Mohammad Chaudhry, said on Monday the court would decide the case without giving a thought to consequences.

“We have to decide the case irrespective of any apprehension about consequences. That has never been in our minds,” he said.

He made the remarks when Barrister Aitzaz Ahsan, the lead counsel of the chief justice, was presenting arguments in response to remarks made earlier by Justice Ramday that the executive had a record of not obeying such orders in the past. He cited examples of various constitutional cases about dissolution of governments.

“The Nawaz Sharif government had been restored by the Supreme Court, but what happened afterwards?”

Justice Ramday asked Mr Ahsan that what he would say about the merit of the case if the barrier of jurisdiction was removed. Mr Ahsan, who had cited many cases in which the Supreme Court had exercised its jurisdiction despite stringent bars in the Constitution, questioned the constitutional validity of various actions taken against the chief justice after the reference was filed in the Supreme Judicial Council and asked “can anyone of you be suspended tomorrow?”

Justice Ramday said: “You keep on telling us about judgments rendered in various cases. Can you come straight to the point what we can do?” Mr Ahsan said the court had to discharge its duties in accordance with demands of the Constitution, irrespective of what the executive would be doing later.

Answering a court query, Barrister Ahsan said President Gen Pervez Musharraf and the Supreme Judicial Council had been made respondents in the case. He said some members of the council were not qualified to sit on the bench and specifically mentioned the Chief Justice of the Lahore High Court. “I have not impleaded him out of respect for the office, but not keeping him out of the rope”.

At this, Justice Ramday told Mr Ahsan that the court would not allow him to implead judges of the superior court in the case.

Referring to Article 248 of the Constitution under which the president was not answerable to any court for the exercise of powers and functions of their respective office or for any act done or purported to be done in the exercise of those powers and performance of those functions, Mr Ahsan said the Article did not cover immunity if malice was alleged.

The court observed that immunity and validation clauses were normally inserted during wars. Mr Ahsan said martial law in the US and British jurisprudence could be imposed only on occupied territories.

He argued that the reference was based on the president’s personal mala fide against the chief justice who had refused to resign at his insistence. He said the reference had been filed in haste because the president was annoyed with the chief justice. He said a protected functionary had to be personally impleaded as a party.

Justice Faqir Mohammad Khokar observed that parliament was the only forum to determine misconduct on the president.

Barrister Ahsan said a judge had effectively been removed and his defence was outside the scope of the Supreme Judicial Council. He said “perversity floated” at the surface of the reference. He argued that the SJC could not hold in-camera proceedings without the consent of the chief justice.

He said the president had to form his opinion objectively before exercising his discretion. He said that in the Haji Saifullah case it had been held by the court that opinion formed by the president be questioned on the basis of malice. He said the same principle should apply in this case wherein serious encroachment on the principle of independence of the judiciary was involved. He argued that despite an ouster clause, there was room for judicial review.

Mr Ahsan used the arguments by Sharifuddin Pirzada in the Pir Sabir Shah case in 1994 and judgments rendered by Justice Malik Abdul Qayyum in the Pervez Elahi and Manzoor Watto cases to make the point that the court had the jurisdiction to hear the petitions challenging the filing of the reference against the chief justice.

Both Sharifuddin Pirzada and Justice (retd) Malik Abdul Qayyum, it may be mentioned, are members of the panel of lawyers defending the reference against the chief justice.

Justice Faqir Mohammad Khokar asked if the apex court could be approached after the SJC gave its opinion on the reference. Mr Ahsan replied by reciting a Persian couplet which says the victim of snake-bite would die by the time the antidote came from Iraq. “Waiting for the damage to be done would be something inappropriate,” he said.

He argued that Article 21 of the Constitution placed bar on the jurisdiction of the courts to take up proceedings before the Supreme Judicial Council and not anything else. He said the SJC had a very limited and restricted jurisdiction. He said the court could review the process of opinion formation by the president. He said the president’s action on the prime minister’s advice was not covered by Article 211 which related to the bar on the jurisdiction of the courts to take up the proceedings before the SJC.

He said trial before an impartial forum was a fundamental right of the chief justice. He said proceedings before the SJC were coram non judice, adding that the council included judges who were not qualified to become its members. He said the council had already taken an adversarial position against Chief Justice Iftikhar Mohammad Chaudhry.

Barrister Ahsan told the court that he would try to conclude his arguments by the tea-break on Tuesday. He said he would focus on Article 248 which gave immunity to the president against judicial proceedings and submit a written note on maintainability of the petitions under Article 184 (3).

Fakharuddin G. Ibrahim will commence arguments before the court as counsel for the chief justice.

Later, talking to newsmen in the court premises, Mr Ahsan said the chief justice had not made any political statement after the filing of reference against him. On the other hand, he said, President Gen Musharraf while addressing a public meeting in Gujranwala had talked about the reference against the chief justice and said there were many facts only known to him.

He rejected criticism about the judicial seminar organised by the Supreme Court Bar Association, saying the event was an annual feature and addressed by the chief justice every year as the chief guest. He said no political leader or activist had attended the seminar.

Referring to statements that the opposition was trying to politicise a judicial matter, he said it became a political issue as well after the chief justice was kept under house arrest, made incommunicado and was manhandled, his servants were arrested and witnesses in the reference against him were being killed and arrested.