ISLAMABAD, July 4: A counsel for the federal government on Wednesday told a 13-member larger bench of the Supreme Court hearing a challenge by Chief Justice Iftikhar Mohammad Chaudhry against the presidential reference that no mala fide could be attributed to the president since the opinion for filing the reference was not his but that of the prime minister.
Rebutting to arguments of the CJ’s lawyer, federal government’s counsel Malik Mohammad Qayyum tried to convince the bench that the opinion of the president on different occasions under various articles of the Constitution was in fact the view of the prime minister on which the president was bound to act.
Since the prime minister is the opinion forming authority, therefore, any mala fide or bias could be alleged against him, but in the instant matter the prime minister was not a party, he said.
Malik Qayyum focussed his arguments mainly on the word ‘opinion’ which the president formulated before sending the reference to the Supreme Judicial Council (SJC) under Article 209 of the Constitution.
He said the president was custodian of the Constitution and he could obtain opinion of the Supreme Court on any matter of public importance.
He said the Supreme Court should provide the meaning of the word ‘opinion’ on which the Constitution was silent, although the definition of judges was available.
“Therefore, whenever the word opinion is used in the Constitution it should be considered in a particular context since it has many dimensions under the common parlance. Although the word opinion has appeared 19 times in the Constitution in 12 articles, but the definition has not been provided,” Malik Qayyum added.
“Sometimes it has been used as belief held by a person and sometimes as an impression.”
He said that no embargo could be placed on the authority of the president to seek an advice on the question of law which might arise. Likewise, no embargo could be place on the president to seek determination of the SJC against any judge, he argued.
The counsel said the opinion of the president under Article 209 was different from the opinion he formed under Article 58(2b) to dissolve the National Assembly. Therefore, the Supreme Court’s interpretation of the word opinion in cases of dissolution of the National Assembly could not be applied in the instant case.
Malik Qayyum explained that under Article 58(2b), the result was the dissolution of the assembly and dismissal of the government and, therefore, the opinion in this article was definitive, final and objective and should be based on sufficient material as the result was very drastic that resulted in almost destruction of the limbs of the government.
“On the other hand, the opinion of the president under Article 209 is neither definitive nor final but is purely tentative. The only purpose and consequence of the opinion is the determination to refer it to the SJC or not,” he said.
On restraining the CJ, he submitted that one who could pass a final order regarding his removal (president’s decision to remove a judge on the recommendation of the council) also had the power to pass an interim order (restraining the CJ).
