Protection of dignity a fundamental right of a judge: Justice Ramday

The head of the 13-member Full Supreme Court Justice Khalilur Rahman Ramday hearing Chief Justice Iftikhar's petition has observed that protection of dignity is a fundamental right of a Judge otherwise anybody can do anything with him.
Justice Ramday made this observation when lead counsel for the CJP, Aitzaz Ahsan contended that the purpose of allegations levelled against the CJ in the reference was to malign and force him to resign from his office.
Aitzaz continued his submissions for the fourth day on Thursday to prove that the reference is illegal, mala fide, unconstitutional, whimsical and an attack on the independence of Judiciary.
He contended that the reference has not been prepared by the constitutional experts but by heads of the government's Intelligence Agencies. He said that instead of constitutional experts like Sharifuddin Pirzada, heads of Intelligence Agencies were present in the President's Camp Office in Rawalpindi and on their advice CJP was suspended.
He said Pirzada himself stated that he was not consulted in preparation of the reference against the CJP. Justice Ramday asked Pirzada about his position in the government, to which he replied that he was Senior Advisor to the Prime Minister on Law, Foreign Affairs and Human Rights, equal to the rank of a Senior Minister.
Justice Abbasi inquired "Is it necessary for the President to have legal advice from experts on the reference, or he can act in his own discretion?
Aitzaz replied" Suspension of the CJ is a constitutional matter, therefore the mode and procedure stipulated in the Constitution cannot be violated." He further elaborated if " consultation "is necessary for the appointment of a Judge under the Constitution, it is all the more necessary take greater care in suspension or removal of a Judge.
He argued that removal of the Chief Justice of Pakistan, is too serious a matter which should be left to the advice of the military officers rather than the legal and constitutional experts. Justice Faqir Mohammad Khokhar pointed out that after the 17th Amendment in the Constitution, the President can form his "opinion" on the basis of information from any source.
Aitzaz replied "the President cannot form "opinion" on basis of reports like Saleh Zafar's news story published in daily Jang and the News on 11/3/2007 and file references against four judges. The counsel said that "opinion: of the President that a Judge may have been guilty of misconduct, is final and first filter before sending it to the Supreme Judicial Council for inquiry, therefore he should take great care in forming his "opinion"
He said that the Chief Justice does not say that he or the Judges of the Superior Judiciary are above law their accountability should not be unconstitutional and malafide. Justice Abbasi asked: "Who is to decide the question of "malafide", this Court or the Supreme Judicial Council? If we have to decide this question, then we will have to look into facts of the reference."
Aitzaz contended as per Malik Assad case the Full Supreme Court is to decide vires (legality) of the reference. Justice Khokhar pointed out that validity and constitutionality of the reference could be discussed in the SJC. Counsel replied that as per its mandate, SJC can not go out of the ambit of reference and decide constitutional issues.
Justice Javed Buttar said " Do you want to say that "opinion" of the President should be based on solid facts" Justice Abbasi remarked "there are several instances when Judges were appointed in the past without consultation with the Chief Justice"
The counsel replied that is why in Al-Jehad case, the Supreme Court closed all doors for the Executive to interfere in the internal matters of Judiciary. "It was reaction of an Institution as Army reacted as an Institution when General Musharraf was removed as Chief of the Army Staff on October `12, 1999 and dismissed the Nawaz Sharif government.
He argued that on 9th March, Chief Justice Iftikhar was not called to the President Camp Office in Rawalpindi to inform him about the reference, but he was asked to submit his resignation.
He contended that law does not permit any dealings / communications between the Executive and the Judge when reference is being filed. He argued that failure of the President and the Prime Minister to form their "opinion" in accordance with law and the unholy haste and the amazing speed with which 3 notifications were issued without following procedure prove the malafide of the referring authority.
He alleged that the government hatched a conspiracy with a predetermined mind to remove the Chief Justice on 9th March and issued notifications in just 3 hours for appointment of the Acting Chief Justice, suspension of the CJ, Oath taking of the ACJ and convening of SJC meeting.
Justice Khokhar pointed out that the court is not holding a criminal trial where distances and times are important Aitzaz submitted that the petition of the Chief Justice is more important than a murder trial the Executive tried to destroy very edifice of the Judicial system of the country. He argued that since internal government formalities and procedures were not followed in the issuance of these impugned notifications, therefore they have no validity under the law.
Justice Khokhar said "in Haji Saifullah case 1988, the Supreme Court held the dissolution of Assembly as illegal, but Presidential order was not declared mala fide" Aitzaz replied "in Nawaz Sharif case in 1993 Chief Justice Nasim Hassan Shah described it a "mistake" that the court did not restore the Assembly.
He said that here in this case, the court has to see what happened between 2pm and 5pm on 9th March when CJ was suspended, ACJ was appointed, ACJ took oath, all members of the SJC attended oath taking ceremony the SJC was ready and all members were available to conduct the speediest completion of formalities on a weekend beyond the official hours and issued restraint order.
Justice Buttar: "Were Chief Justices of Lahore and Sindh High Courts also present at the oath taking ceremony? Aitzaz: "Yes Justice Mohammad Nawaz Abbasi can confirm who attended the oath taking ceremony. " "I want to ask why such an unholy haste heavens would not have fallen had the SJC held its meeting on Monday" he added.
Aitzaz submitted the courts say that the 1973 Constitution envisages parliamentary form of government in Pakistan and the Parliament represents will of the people, but it is the President who calls the shots and appoints and dismisses the Prime Ministers.
He said that the Executive can file a reference against a Judge but it cannot suspend him or send him on forced leave. "I ask under what law, the Law Secretary issued the notification of suspension of the Chief Justice" Justice Ramday remarked "what the Secretary can do when the President makes a Chief Justice non-functional"
Aitzaz reiterated that the courts have inherent powers, but the executive has no inherent powers under the Constitution, therefore it would have to perform its functions in accordance with the law and the constitution.
Counsel for the Federation Malik Mohammad Qayyum requested the court to next hearing on Monday as the President's counsel Sharifuddin Pirzada was suffering from "frozen shoulders", and he has to consult his doctors. Aitzaz will continue his arguments on Monday.