CJP issue of utmost public importance: Ramday

Head of the 13-member larger bench of the Supreme Court, Justice Khalilur Rehman Ramday has observed that the court will resolve the constitutional issues raised by Chief Justice of Pakistan Iftikhar Mohammad Chaudhry and 37 other petitioners who have challenged legality of the Presidential reference against the CJP.
He said, "We are not concerned about how many persons have filed petitions but what are the serious constitutional issues before us." While speaking on the question of admissibility of the petitions against the CPJ reference, leading counsel for the President and the Federation Syed Sharifuddin Pirzada, and Malik Mohammad Qayyum raised the following issues:
(a) President is not answerable to any court for the exercise of his powers and performance of functions of his office.
(b) Supreme Judicial Council is the creation of the Constitution for a specific purpose of accountability of the judges of the higher Courts.
(c) SJC is not an administrative body but a judicial forum.
(d) Under Article 211 of the Constitution proceedings of the SJC cannot be challenged in any court.
(e) There are more than 30 clauses of the Constitution, which put a bar on the Jurisdiction of the courts.
(f) The petitions are premature and not maintainable in the Supreme Court.
(g) It is up to the conscience of a judge whether he wants to sit on a bench or not.
In his reply Aitzaz Ahsan counsel for CJP has raised following issues in his submissions during the past three days.
(a) Can the President suspend or restrain a judge from performing functions of his office or send him on forced leave.
(b) Can Head of the State summon Chief Justice of Pakistan and confront him with charges against him.
(c) Does the Constitution permit appointment of an acting Chief Justice in the presence of CJP;
(d) Is the SJC properly constituted without the Chief Justice.
(e) Can a reference be filed against the CJP under Article 209 of the Constitution.
(f) What is the forum where a Judge can file an appeal against the report of the SJC.
(h) Can High Courts and Supreme Court exercise their respective jurisdiction where the Constitution has placed bar on them.
(i) Aitzaz cited several judgements of the superior courts to prove his contention that when there is mala fide, (bad intention) ultra vires and curom non judice (beyond one's powers or authority), the courts have exercised their jurisdiction and reviewed the matter.
Justice Ramday observed that there is no doubt that this is a matter of utmost public importance since blood is flowing on the streets of the country, but the court has to see what is its jurisdiction in this matter.
Aitzaz contended that all chief martial law administrators /dictators of Pakistan have placed maximum bars on the jurisdiction of the courts during their dictatorial rules and even tried to influence their decisions. He quoted a judgement of the Supreme Court in Asima Jilani case 1972 in which the court declared General Yahya Khan as usurper and guilty of high treason.
It may be recalled that this judgement was written by late Justice Yaqoob Ali Khan (father-in-Law of Justice Khalilur Rehman Ramday) who later rose to become Chief Justice of Pakistan but was ousted by General Ziaul Haq after imposing martial law.
Justice Yaqoob wrote, "When the coercive apparatus of the State is in the hand of a Usurper, the people and the courts are silent" Justice Ramday remarked that this sentence from his famous judgement is written on his grave stone. Name of General Aslam Beg, Chief of Army Staff in 1988 also figured in the court on Friday.
General Beg is said to have influenced a decision of the Supreme Court, which was about to restore the dissolved National Assembly and government of Prime Minister Mohammad Khan Junejo in September 1988. Aitzaz quoted a judgement of the court to the effect that the court declared action of General Ziaul Haq as illegal but did not restore the Assembly.
Later in another judgement, former Chief Justice Nasim Hassan Shah regretted the earlier judgement and said that the court should have restored the assembly. In a lighter vein Justice Ramday recalled that name of General Aslam Beg, the then Chief of Army Staff is also mentioned in connection with that judgement.
Aitzaz, said that General Beg had reportedly sent the then Law Minister Wasim Sajjad to the Court with the message that the Assembly should not be restored as election machinery had been geared up for holding general elections in the country.
Counsel for the Federation Malik Mohammad Qayyum confirmed the story and said, " I and Justice Ramday are witness to that incident. "No no .no. Malik Qayyum, you are a free to say that as a lawyer, while sitting here as a judge I can't. I don't know anything," Justice Ramday said laughingly.
Justice Ramday said "If Allah Ta'ala granted me life after retirement, I will write a book based on my memoirs." On this, Aitzaz said, "I am sure there would be so many bombshells in that unique book."
It may be added that Justice Khalilur Rehman Ramday, whose father was a judge of the Lahore High Court, his father-in-law Chief Justice of Pakistan, his elder brother Attorney General of Pakistan, has held the offices of Assistant Advocate General Punjab, Advocate General Punjab and Judge, Lahore High Court, before his elevation to the Supreme Court. The hearing has been adjourned till Monday morning.
The 13-member full court headed by Justice Khalilur Rehman Ramday includes Justice Mohammad Nawaz Abbasi, Justice Faqir Mohammad Khokhar, Justice Mian Shakirullah Jan, Justice M. Javed Buttar, Justice Tassaduq Hussain Jillani, Justice Sayed Saeed Asshad, Justice Nasirul Malik, Justice Raja Fayyaz Ahmad, Justice Chaudhry Ejaz Ahmad, Justice Sayed Jamshed Ali and two ad hoc judges, Justice Hamid Ali Mirza and Justice Ghulam Rabban.