Judiciary alone not responsible for country’s ills: Ramday
By Nasir Iqbal
ISLAMABAD, June 26: Justice Khalilur Rehman Ramday, heading a 13-member bench hearing a petition challenging a presidential reference against Chief Justice Iftikhar Mohammad Chaudhry, has deplored that it is judiciary which is blamed for all the ills, whereas everyone bore responsibility for the poor state of affairs.
“We know that we are not clean,” Justice Ramday said. “The judiciary from day one is nagged and taunted for validating martial laws,” but when the Supreme Court extended President Pervez Musharraf’s three year term, the nation and the politicians rejected its judgment by giving him five years through the 17th Constitutional Amendment, he remarked.
Referring to Justice Mohammad Munir, Justice Ramday lamented that everybody pointed fingers at the judge for validating the martial law of Gen Ayub Khan but politicians and the nation accepted the constitution given by the military ruler when they should have discarded it. “Not only did they accept it, but they also contested elections under the same constitution and became ministers in Ayub’s cabinet.
“They also became judges under the same constitution,” quipped Barrister Aitzaz Ahsan, who is representing the chief justice before the larger bench.
“Unless we learn to sacrifice our self-interest over public interest, we would never progress and would continue to destroy institutions,” Justice Ramday observed.
Accepting the observation, Aitzaz Ahsan said four institutions — army, judiciary, religious parties and political parties — were responsible for the country’s predicament.
“If we speak against the army we face the threat of undergoing 23 years’ jail, like PML-N leader Javed Hashmi did. Likewise, the judiciary can send anybody to six months jail term. And if one says something against religious parties, he faces the threat of being decreed as infidel and can be killed.
“It is the politicians who are left to face all the brunt — propaganda, consequences and politically-motivated cases,” Mr Ahsan said.
At this, Justice Mohammad Nawaz Abbasi said whenever a court took steps to correct a situation, politicians averted it by making the same mistakes.
During the hearing, the lunch controversy again surfaced when Justice Javed Buttar recalled an instance from the Bangladesh Supreme Court where the Chief Judge attended a dinner hosted by a respondent in a case, but declined to sit in the bench and even resigned.
“Lunch is taken in broad daylight, but dinners in the darkness of the night,” Justice Abbasi said, adding that the issue was highlighted so much despite the fact that they were not part of the instant larger bench then to hear the petition of the chief justice.
“This is not your fault but the president’s counsel Sharifuddin Pirzada, with whom you enjoyed the lunch, should be careful because at that time a request for the full court had already been submitted before the court,” Barrister Ahsan said.
“Aitzaz is suffering from Sharifuddin Pirzada phobia,” federal government’s counsel Malik Mohammad Qayyum interjected. “Let Mr Pirzada defend himself,” Mr Ahsan said, adding he had great deference for age but believed that people with known public records should be revisited for their deeds over the past 60 years.
Barrister Ahsan argued that whenever personal interest of a judge was involved in the outcome of a case, it was not the question of his discretion to sit in the bench; he would be disqualified from sitting in the bench even though bias was not alleged against him.
Citing the code of conduct for judges, he argued that a judge must decline resolutely to sit in a bench where he might have any interest in a case. He was of the view that in case of interest even in the subconscious of a judge, he must decline to hear the case before the stage of allegations came.
Justice Ramday observed that all this was a matter of conscience of a judge and he must apply his conscience while sitting in a bench in such a case.
But Justice Buttar said sensitive matters could not be left to the conscience of a judge.
On the composition of the Supreme Judicial Council and automatic disqualification of a judge, Barrister Ahsan said Justice Javed Iqbal should not sit in the council keeping in view his prospects of becoming the chief justice after the retirement of Acting Chief Justice Rana Bhagwandas in December – a principle already established by the Supreme Court in an earlier case.
About in-camera proceedings of the SJC, Barrister Ahsan said the trial of a judge must be in open court unless the judge himself requested for an in-camera trial. He said Rule 13 of the SJC provided for in-camera trial but this was applicable only on provision of information or complaint to avoid scandalising or humiliating a judge. But this rule did not apply to references sent by the president, he said.
