ISLAMABAD, May 23: A senior counsel representing Justice Iftikhar Mohammad Chaudhry in the presidential reference case told the Supreme Court on Wednesday that the Supreme Judicial Council acted to safeguard the tenure of superior court judges, rather than removing them as adjudicators.

Barrister Aitzaz Ahsan interpreted in a different way the provision of article 209 under which the council proceeded against judges.

A 13-member larger bench headed by Justice Khalilur Rehman Ramday took up 23 identical petitions challenging the filing of a reference against the chief justice, composition of the council and its competence to try the chief justice.

Earlier, Malik Mohammad Qayyum, representing the federal government, concluded his arguments. He said the council as well the Supreme Court were creatures of the Constitution, both manned by judges of the superior judiciary and headed by a person who was the chief justice.

Barrister Ahsan argued that the council had certain inbuilt filters requiring the president to apply his mind twice — before sending a reference against a judge by satisfying himself that his opinion had a reasonable and cogent basis, and when he considered the recommendation of the council before removing a judge on misconduct, as his opinion should not be based on whims.

Likewise, the council was required to examine and conclude that the judge against whom a reference had been moved was guilty of misconduct and then form recommendation for the removal of the judge, he said.

Referring to an example from the Malaysian judicial history, he said the logic behind the federal government’s arguments was dangerous as they were allegedly attempting to scare judges over the last five days by convincing them that they could be removed easily and that some day one or two judges might be missing from the bench.

Reading article 209 of the Constitution, Barrister Ahsan argued that the council was not even a permanent body as was convened and might have different compositions with a limited scope of going into the disqualification criteria for judges only.

The criteria require the SJC to determine that the judge has been incapacitated or guilty of misconduct.

The council after arriving at a conclusion can even recommend to the president that instead of removing the judge, he could be asked to resign.

Pointing towards the bench at one stage, Barrister Ahsan said that every judge was carrying his own cross over his shoulder and those who were at the centre of some controversy, the weight was even immense. The reference appeared to be to a news item regarding a controversy over a lunch by two senior judges present in the larger bench with government’s top aides directly involved in the judicial battle on the issue of the chief justice.

“I am not guilty, because I am carrying a crescent as I have to pass through Aabpara (apparently referring to Lal Masjid) also,” observed Justice Khalilur Ramday in a lighter vein.

This prompted Justice Mohammad Nawaz Abbasi to observe that everyone was responsible for his own deeds and nobody should consider that he would be spared for his conduct.

Justice Ramday suggested that politicians should formulate policies to refrain from extending government jobs, like the post of the Chief Election Commissioner or federal ombudsman, etc., to superior court judges after their retirement because it had become a malice reflecting adversely on the independence of judiciary. There was also something like self-denial, Barrister Ahsan quipped.

At the outset of Wednesday’s proceedings, Barrister Aitzaz accused the referring authority (the president) of issuing statements amounting to interference in the court’s hearings and said the chief justice had not uttered a word after March 9 when he was restrained from acting as the chief justice.

He deplored that his phones were being tapped, one witness of the chief justice had been killed and another arrested, and he was receiving threatening messages.

During the hearing, Justice Ramday observed that if judges continued to be treated like this he dreaded the day when mothers would scare their naughty children with the fate of judges, and if that did not quieten them, to wish them the office of the chief justice.