ISLAMABAD, June 4: The Supreme Court was requested on Monday to quash the presidential reference against Chief Justice Iftikhar Mohammad Chaudhry on misconduct because it had been filed after making him non-functional.

Senior Advocate Akram Sheikh, representing three petitioners — former SECP chairman Dr Tariq Hassan, the Lahore High Court Bar and the Association of Pakistani Lawyers -- was arguing before a 13-member larger bench hearing identical petitions challenging the filing of reference against the chief justice, composition of the Supreme Judicial Council and its competence to try the chief justice.“This is not a case of a section of lawyers but a question affecting fundamental rights of all citizens of this country,” he stressed.

Advocate Akram alleged that acts of President Pervez Musharraf involved malice because the chief justice had been detained in the Army House for five hours and was asked to resign while oath was administered to the acting chief justice before the filing of the reference.

Meetings of the council were never convened in such a manner without prior schedule, but here chief justices of two high courts were especially flown from Karachi and Lahore for constituting the SJC afresh and holding a meeting to endorse the act of the president for making the chief justice non-functional, he deplored. “Likewise, the endorsement by the council came without any authority or law despite, although its meetings are always held in a transparent and dignified manner.”

He argued that the petitions were maintainable as President Musharraf had caused structural damage to the Supreme Court by suspending one of its two components -- by making the chief justice non-functional and thereafter forcing him to proceed on compulsory leave.

He requested the bench to authoritatively interpret articles 209, 210 and 211 of the Constitution to forestall assaults on the independence of judiciary.

On immunity to the president under article 248 of the Constitution, he said the president had no immunity against acts if done without jurisdiction or on mala fides because the authority the President commanded was not total and absolute.

“Therefore in cases where mala fides are alleged against state functionaries, it is necessary to implead them as a party in the cases.”

On article 211, he said the provision should be read along with article 209 which envisaged seven steps to remove a superior court judge. These are: (1) Receipt of information by the president (from any source); (2) formation of opinion by the president on the basis of information received, (3) direction by the president (on the advice of the cabinet or the prime minister) to the SJC to inquire; (4) conduct of inquiry by the council; (5) formation of opinion by the council on the basis of inquiry; (6) report of the council to the president (not part of the proceedings) and (7) removal of the judge from the office by the president.

The reference, he alleged, was based on the information which clearly lacked credibility and admissibility and, therefore, it should be declared null and void.

He argued that article 209 (5-b) required that the formation of opinion by the president should have nexus with a precondition that a judge of the Supreme Court was guilty of misconduct and that the president should have been aware of the code of conduct for judges.

Petitioner Mujeeb Pirzada alleged that the prime minister rendered advice for moving the reference against the chief justice as revenge against the Pakistan Steel judgment in which certain allegations had been proved against him.

Barrister Zafarullah Khan cited Surah Al Imran to establish that even the Holy Prophet (PBUH) never claimed immunity.