ISLAMABAD, July 3: Justice Khalil-ur-Rehman Ramday on Tuesday observed that it was for the first time since 1973 that the executive had invoked the Supreme Judicial Council (SJC), instead of butchering unwanted judges arbitrarily.

“Eyebrows are raised when judges are removed by the executive not in accordance with the law,” said Justice Ramday, who is heading a 13-member larger bench hearing a petition filed by Chief Justice Iftikhar Mohammad Chaudhry challenging the presidential reference against him, composition of the SJC and its competence to try the CJ.

“When nobody felt using Article 209 what to talk of misusing it.”

In contrast to the Monday’s proceedings when the 13 judges were visibly disturbed after finding scandalous material against some of the judges in the presidential reference, Tuesday’s proceedings went smoothly.

Justice Ramday recalled how former chief justices Mohammad Yaqoob Ali, Anwarul Haq and Saeeduzzaman Siddiqui, also mentioning the name of the incumbent CJ, had been removed unceremoniously by the executive and said that the number of superior court judges removed arbitrarily was countless.

“In a country like ours, there is no need to use Article 209,” Justice Mohammad Nawaz Abbasi quipped.

The issue surfaced when federal government’s counsel Malik Mohammad Qayyum argued that Article 209 was as applicable to the CJ as to other judges and that this provision ensured the independence of the judiciary.

“Our history is replete with incidents of removing judges” which, he said, he was not proud of. “But we should follow the Constitution,” he said, recalling that 50 impeachments had taken place in the US, of which 10 were against judges.

Malik Qayyum said he still believed that the CJ should not be made non-functional. At this, Justice Ramday observed that the counsel was saying that he was still the CJ, but the flag had been removed from his vehicle as well as the residence while his chambers had been sealed.

Only Law Minister Wasi Zafar could offer an explanation in this regard, Malik Qayyum said. He argued that there was no separate provision for the appointment, remuneration, retirement or resignation for the CJ, and therefore, no difference could be made between other judges and the CJ.

“The SJC is competent to decide incapacity or misconduct of the CJ like other judges and there is no provision for special forum for trial of the CJ in the Constitution. All members of the SJC are replaceable and even CJ, who heads it, can be replaced by the acting chief justice,” Malik Qayyum argued.

He said if it was declared that the SJC was not a proper forum to try the CJ then it would also deny all available protection to judges under Article 209 and the CJ would be left at the mercy the executive.

On the formation of opinion, he said the president always acted on the advice of the prime minister who formed opinion to forward the reference, though the president had the power to send the advice back to the premier for reconsideration.

When Malik Qayyum referred to a chapter in the Constitution on the establishment of the Federal Sharia Court (FSC), Justice Ramday deplored that the chapter had been introduced by the martial law administrator and not by the lawmakers or the founding fathers with intent to dump unwanted judges.

“You are right but the provision was adopted by a sovereign parliament,” Malik Qayyum argued.

But this was not part of the original scheme, Justice Nasirul Mulk observed. He was supported by Justice Faqir Khokhar who said in a lighter vein that it was an ‘adopted baby’. Justice M. Javed Buttar, however, said the chapter did not show any legislative intent.

Justice Ramday referred to what had happened to judges like justice Mehbub, justice Aftab, justice Nasir Aslam Zahid and justice Khalilur Rehman and observed that the FSC was made not for the glory of religion but to be used as a dumping ground.