ISLAMABAD, May 31: Justice Khalilur Rehman Ramday, heading a 13-member bench of the Supreme Court hearing identical petitions challenging the filing of a reference against the chief justice, on Thursday observed that no state functionary, not even the president, could claim ‘absolute immunity’.
What the law said was that the president could not be made a respondent before a court by name under Article 248 of the Constitution, although nobody could claim absolute immunity, explained Justice Ramday. The petitions challenge the presidential reference, composition of the Supreme Judicial Council and its competence to look into the charges against the chief justice.
Justice Ramday was responding to arguments of Advocate Hamid Khan, representing the Pakistan Bar Council, who stated that the counsel of the federal government were claiming immunity for the president that he was not answerable to the court.
The federal government was only insisting that the name of the president should be deleted from the list of respondents in the petition of the chief justice, Justice Ramday said.
He also observed that the Holy Quran laid great emphasis on justice, which was the only recipe to ensure loyalty to the state.
He recalled that societies which did not believe in equality, fairness and justice were wiped out. He cited an example from the era of Hazrat Shoaib (A.S.) when an entire civilisation was wiped out because of their deceit and fraud in measurements.
Hamid Khan laid stress on a deliberative process by the cabinet before advising the president for sending a reference for removing a judge and cited the cabinet meeting held on March 19 in Gwadar to endorse, among other things, the filing of the reference against the chief justice.
“What should have been done earlier was done subsequently,” he said. The filing of the reference against the judge was something important and, therefore, should not be arbitrary and should be based on strong reasons, he added.
Citing two cases from the US judicial history, United States versus President Nixon and President Clinton versus Jones, the counsel recalled that the two presidents of America had also claimed privilege but the US courts had interpreted the laws in a different way, contrary to what was being asserted.
Advocate Rasheed A. Rizvi, representing the Sindh High Court Bar, argued that under Article 209 of the Constitution, the SJC was not a court because the status of its members was different from that of judges. “You cannot equate the Supreme Judicial Council with a union council,” Justice Faqir Khokhar observed.
Advocate Rizvi said the scope of inquiry of the council was limited to misconduct and to determine incapacity of a judge. Moreover, judges under Article 178 of the Constitution are always administered oath before entering any office and in the case of the SJC, no fresh oath is required. The council also does not pass an authoritative judgment, but forms its report to be submitted before the president.
Justice Ramday observed that had the council not been given the powers of the Supreme Court and the high courts to summon witnesses under Article 210, it would have no authority to ensure attendance of anybody for evidence.
