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Reference filed in SJC against superior court judges

October 15, 2013
— File photo
— File photo

ISLAMABAD: A few months before his retirement, Chief Justice Iftikhar Muhammad Chaudhry is facing another reference in the Supreme Judicial Council (SJC), this time instituted by Abid Saqi, president of the Lahore High Court Bar Association (LHCBA).

The reference alleging misconduct also involves other SC judges.

“We have requested the SJC to initiate appropriate proceedings against the chief justice, Justice Jawwad S. Khawaja, Justice Khilji Arif and Justice Sheikh Azmat Saeed,” Mr Saqi told Dawn.

Justice Chaudhry will retire from service on Dec 12.

Earlier on March 9, 2007, then president Pervez Musharraf sent a reference under Article 209 of the constitution to the SJC for investigating allegations of “misuse of authority” by the chief justice after making him non-functional.

The chief justice then filed a petition against the reference and a 13-judge Supreme Court bench headed by Justice Khalilur Rehman Ramday struck down it and restored the chief justice to the seat of Pakistan’s top adjudicator on July 20, 2007.

A detailed judgment issued on Dec 23, 2009, quashed the reference with Justice Ramday explaining that the office of the chief justice had never been vacant on March 9, 2007. Therefore, no room existed for the appointment of an acting chief justice since the chief justice was not absent or unable to perform the functions of his office.

Now Mr Saqi has submitted the reference in pursuance of a resolution passed by the general house of the LHCBA in its meeting held on July 30 and accusing the judges of blatantly transgressing and misusing their judicial authority and power, usurping the authority, powers and territory of other constitutional offices and making them redundant in violation of the scheme of the constitution, indiscriminately using suo motu powers under Article 184 (3) of the constitution and violating the Code of Conduct for superior court judges.

“Even if not taken up by the SJC, such documents or material generally never die down rather they become part of the gossips in the bar creating momentum of perception,” said a senior lawyer from Lahore.

Under Article 209, the SJC is headed by the chief justice and comprising two most senior judges of the Supreme Court and two most senior chief justices of the high courts.

Under clause 5 of Article 209, if, on information from any source, the council or the president is of the opinion that a judge of the Supreme Court or a high court may have been guilty of misconduct, the president shall direct the council to, or the council may on its own motion, inquire into the matter.

Abid Saqi also said that he had cited in the reference the example of July 24, 2013, when the Supreme Court, on a petition of PML-N Senator Raja Zafarul Haq, overturned the election schedule for the office of president of Pakistan without giving a notice to any of the affected parties.

Citing the 1995 Supreme Court verdict in the case of Pir Sabir Shah, PML-N chief minister of then NWFP, Abid Saqi said the court specifically stated that when the constitution gave the Chief Election Commissioner (CEC) the power to act alone in a particular matter then even the Election Commission of Pakistan (ECP) had no power or authority to act or interfere.

But the July 24, 2013, verdict failed to specify under which authority the court had exercised jurisdiction and how Article 184 (3) of the constitution was attracted. He alleged that the decision had overwhelmingly been ridiculed in the media and by commentators.

Thus the bench and its members violated Article V of the Code of Conduct under which a judge is strictly prohibited from engaging in any public controversy, least of all, on a political question. The presidential election case was clearly political in nature with political consequence because it had been brought by a political party, he alleged.

As a result, several political parties boycotted the presidential election thus relegating a highly symbolic election to the highest office of the federation to a farce, he alleged.

Similarly in the case of former prime minister Yousuf Raza Gilani, who was tried under contempt charges by a seven-judge Supreme Court bench, but a three-member bench headed by the chief justice disqualified him on June 19, 2012, from the date of judgment of the seven-judge bench which in a short order had shied away from the question of his disqualification and left it to the other constitutional offices – the speaker of the National Assembly and the ECP to decide.

Thus, Abid Saqi said, the three-member bench reviewed the decision of the seven-judge bench and practically overturned it by disqualifying Mr Gilani.The reference also cited the case of Arsalan Iftikhar, son of the chief justice, and a name which also surfaced in the reference initiated by former president Pervez Musharraf.

After the National Accountability Bureau, along with other staff of Federal Investigation Agency and Islamabad Police, started the investigation, Arsalan Iftikhar approached the court again which stayed the investigations and ordered constitution of a one-man commission of Dr Shoaib Suddle to investigate the matter.

The petitions of PCO judges also featured in the reference, Abid Saqi said, adding that the violation was also committed by allowing the judges of subordinate judiciary to be at the disposal of ECP to conduct the May 11 elections and then by repeatedly addressing returning officers on matters over which the chief justice had absolutely no authority or power.

After services of the judges of subordinate judiciary were handed over to the ECP, they were deemed to have been surrendered to the commission and were at their disposal and were no longer judicial officers, Mr Saqi explained.