ISLAMABAD, May 21: The Supreme Court on Monday observed that the Supreme Judicial Council (SJC) was not above the apex court enjoying “blanket protection”. “Will a judge wait for the ‘day of judgment’ to raise his complaint because findings of the SJC are final and no remedy is available if the council moves to prosecute him along with his family with a mala fide intention,” asked Justice Khalilur Rehman Ramday while raising a hypothetical question.

A 13-member larger bench headed by Justice Khalilur Rehman Ramday was hearing 23 identical petitions challenging the presidential reference against Chief Justice Iftikhar Mohammad Chaudhry, composition of the SJC and its competence to try the chief justice.

Advocate Malik Mohammad Qayyum, representing the federal government in the petition of the Watan Party, argued that the Supreme Court or any other constitutional court had no authority to interfere or take away the exclusive jurisdiction of the SJC to decide a reference against a judge.

Citing a number of cases, both from the Indian and Pakistani jurisdiction, Malik Qayyum tried to establish that the SJC was a constitutional court but not an ordinary court as understood in the common parlance.

“Article 209, under which the SJC hears a reference against judges of the superior courts, and all other constitutional provisions pertaining to the removal of judges are very clear and self-explanatory,” the counsel said.

At this, Justice Khalilur Rehman Ramday referred to article 203(C) of the Constitution (establishment of the Federal Sharia Court), under which any judge of a high court could be victimised by transferring him to the FSC.

“The FSC was set up in the name of Islam but we do not hesitate and commit exploitation even in the name of Islam,” Justice Ramday deplored and recalled the incident of high court judge Justice Aftab Hasan who was made officer on special duty (OSD) only to victimise him.

Similarly, two chief justices of high courts were transferred to the FSC to make them junior-most judges, Justice Ramday observed, saying this was not fair.

“Judges should be removed only under article 209 and that too on merit,” he observed.

Justice Mohammad Nawaz Abbasi explained the wisdom behind creating article 209 and said that if a judge was to be prosecuted by a court of law then there was no need for constituting the council.

“The rationale behind establishing the SJC was that Constitution makers wanted to get the case of a judge adjudicated by a separate tribunal,” he said.

Malik Qayyum emphasised that the opinion of the SJC was binding on the president, who refers to the council the reference against a judge.

At this, Justice Ramday observed that even if the opinion of the SJC was binding on the president, it could not have the status of the court.

Malik Qayyum argued that the proceedings before the council were protected and the immunity include the first step of putting the machinery in motion. Under article 209, the filing of reference along with all preliminaries and anything prior to it is also protected.

“How can all steps leading to the initiation of the reference enjoy constitutional immunity,” asked Justice Ramday and mentioned that so many times the president had brought it on record that complainant against chief justice was the prime minister who had advised him to file the reference.

AFP adds: Justice Khalilur Rehman Ramday told Malik Mohammad Qayyum not to “scare” him by citing a similar crisis two decades ago in Malaysia.

Government lawyers had cited a 1988 judicial crisis in Malaysia, during which its chief justice was brought before a tribunal convened by then prime minister Mahathir Mohammad on grounds of misconduct.

Mahathir suspended five Supreme Court judges after they stayed proceedings against the chief justice, although he was later removed by the tribunal while two judges were fired by the premier.

“Please don’t scare us by citing the Malaysian case,” Justice Ramday said when Malik Qayyum raised the matter.

There was muffled laughter in the packed courtroom when Justice Ramday said: “We want to forget the Malaysian case as a bad dream.”

Justice Iftikhar Chaudhry’s counsel Aitzaz Ahsan said the decision and Mahathir’s treatment of the judges had received “worldwide condemnation”.

Chief government lawyer Syed Sharifuddin Pirzada had also cited the Malaysian chief justice’s case last week.