Tamizuddin case haunts CJ hearing

23 May 2007

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ISLAMABAD, May 22: Justice Khalilur Rehman Ramday, heading a 13-member larger bench hearing identical petitions challenging a reference against Chief Justice Iftikhar Mohammad Chaudhry, on Tuesday prayed that its judgment on the current controversy would not meet the fate of the Maulvi Tamizuddin case verdict.

“God forbid, the decision of this court should not meet the same fate like that of the Maulvi Tamizuddin case as the judgment of Justice Munir has become something of a bad precedence,” Justice Ramday observed.

The observation came when Advocate Malik Qayyum, representing the federal government in the petition of Watan Party, emphasised that the current hearing was the most important case in the judicial history of Pakistan after Maulvi Tamizuddin’s case.

Maulvi Tamizuddin Khan, president of the first Constituent Assembly of Pakistan, approached the Singh High Court after the then governor general Ghulam Mohammad had dissolved the assembly. Chief Justice Sir George Constantine of the SHC accepted the petition and restored the assembly.

However, Ghulam Mohammad filed an appeal in the then Federal Court and Chief Justice Mohammad Munir had upheld the dissolution of the assembly on technical grounds and ruled in favour of the governor general.

That decision changed Pakistani politics forever and people started viewing the judiciary with distrust believing that any head of the state would always expect the superior judiciary to side with him in any confrontation with parliament.

Malik Qayyum was on his legs for the fourth consecutive day, opposing the maintainability of a set of 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. He was supposed to conclude his arguments on Tuesday but stretched these for another day, with a promise to close it by Wednesday.

His lengthy arguments forced former Pakistan Bar Council vice-chairman Ali Ahmed Kurd to accuse the government counsel of wasting precious time, especially at a time when all eyes were focussed on the Supreme Court.

Justice Ramday observed that this larger bench could not take any risk and would like to examine every argument to reach a just conclusion.

He assured the counsel of both sides that the bench was not in a hurry because of the kind of situation it was confronted with and expected some good to come out of the entire exercise. He also mentioned Monday’s full court meeting which had decided to do away with a three-month court vacation.

When the counsel said Islam had no concept of vacation, Justice Ramday deplored that “we always exploited our religion and never hesitate to commit exploitation in the name of Islam”.

Justice Ramday observed that before sending a reference to the SJC the president should always consider whether the complaint he had received contained some substance warranting the invoking of the SJC.

Malik Qayyum emphasised that the president was bound to refer the reference to the council on the advice of the prime minister because the advice was not only binding but was also protected under article 47 of the Constitution.

At this, Justice Faqir Khokhar recalled the arguments of senior counsel for the president Sharifuddin Pirzada who had said that the name of the president should be deleted from the list of respondents as a party in the petition of the chief justice because the president had acted on the advice of the prime minister.

Malik Qayyum emphasised that article 211 of the Constitution provided blanket protection to all actions under article 209 under which the SJC considered the reference for the removal of a judge. The actions under article 209 include direction of the president to the council to initiate its proceedings, form its opinion for the removal of the judge by the president.

“Proceedings before the council means action as a whole right from the start to the end,” Malik Qayyum said, adding all the acts were protected and, therefore, the Supreme Court could not interfere.

“We are living in the 21st century and should read and interpret laws in its real spirit to find out its purpose,” he said.