ISLAMABAD, June 6: Justice Khalilur Rehman Ramday, heading a 13-member larger bench hearing identical petitions challenging a reference against Chief Justice Iftikhar Mohammad Chaudhry, on Wednesday asked a senior counsel to intervene and ponder why judges who quit the judiciary got warm acceptance by the people as well as the bar.
“You being an elderly figure and being our legal asset command a lot of respect and privileges from everyone. Therefore, you should think over about this aspect of the situation,” Justice Ramday observed, addressing Advocate Sharifuddin Pirzada. Being a serious matter, this could not be left to mere arguments from both sides, the judge observed.
Citing examples of Justice Shaikh Shaukat, Justice Samdani and Justice Malik Muhammad Qayyum, the judge mentioned the level of acceptability and recognition a judge received whenever asked to resign.
Countering arguments of Barrister Aitzaz Ahsan, the legal counsel of the chief justice, Sharifuddin Pirzada emphasised that after the famous eighth amendment during the Ziaul Haq period and the Asad Ali case, reference before the Supreme Judicial Council (SJC) against a judge had always been referred by the president on the advice of the prime minister.
In the event of the president acting on his own and sending a reference without the advice of the prime minister, Mr Pirzada said, that reference would be unconstitutional as advice was always binding on the president.
Mr Pirzada, who was assisted by Advocate Rana Waqar, said the recommendation of the council to the president for removal of a judge would be in the nature of judgment.
Referring to the allegation that the chief justice had been asked to resign by the president, Mr Pirzada contended that this was a proper course and generally followed. He cited the example of Chief Justice Douglas Young of the Lahore High Court who was asked to resign in 1942 by the then governor general on the advice of the Privy Council.
The controversy emerged when Khalid Latif Gaba, an author, brought the judge into disrepute by writing something adverse about him but was sentenced to six months under contempt of court.
Mr Pirzada then referred a book by A.G.N. Noorani from India titled Constitutional Questions and Citizen’s Rights and quoted an instance when former Indian prime minister Jawahar Lal Nehru in 1947 summoned Justice Sinha of the Allahabad High Court and asked him to resign or face a reference on complaints of the bar.
Such things also happened in England and other countries, he said.
Referring to proceedings before the SJC against the chief justice, Mr Pirzada said it was his personal belief as an officer of the court that the proceedings before the council should not be held in camera, especially when the judge himself was of the same opinion. This is also an internationally accepted practice as laid down in the 1986 Montreal Convention, 1993 Delhi Meetings of Judges and 1997 UN Convention.
Likewise, there should be a right of appeal to the aggrieved party because there was no recourse for a judge after he was removed by the council, Mr Pirzada said, adding that he was seriously considering this aspect. However, he clarified that the proceedings in the instant reference against the chief justice should be held under the available law.
Aitzaz Ahsan offered to move a constitutional amendment in parliament in this regard.
At this Justice Ramday said in a lighter vein: “Couldn’t he move the amendment now or would wait till we die?”Mr Pirzada recalled that founding father Quaid-i-Azam Mohammad Ali Jinnah had suggested to him to enter the legal profession and concentrate on companies and constitution laws, adding that late Ambit Kaur, Sipro and Mohammad Ali Jinnah were great names. “It was Quaid-i-Azam who suggested me to carefully listen to the lectures of K.N. Joshi, a great jurist.”
“I may add a fourth name who is Sharifuddin Pirzada,” Justice Ramday observed.
This prompted Aitzaz Ahsan to say that Mr Pirzada should not be compared with Quaid-i-Azam because he had always appeared for military rulers during his life.
Mr Pirzada said he had also appeared for cases in which assassination attempts were made against him. “I appeared for president (speaker) of Pakistan’s first Constituent Assembly, Maulvi Tameezuddin Khan, the judges’ case and even my passport was impounded for doing the Asma Jillani case,” he said.
“Had Quaid-i-Azam been alive, there would have been no question of military rule,” Mr Pirzada said pointing towards the petitioners’ side.
