SJC final authority to decide question of judge's guilt: Qayyum

Counsel for the Federal Government, Malik Mohammad Qayyum, submitted before the Supreme Court on Wednesday that the President "is bound to act upon the advice of the Prime Minister".
The 13-member Full Bench of the Supreme Court, headed by Justice Khalilur Rehman Ramday, was hearing a petition of Chief Justice Iftikhar Mohammad Chaudhry in which he has challenged validity of President's reference against him on charges of misconduct and abuse of authority.
Qayyum said that if in the opinion of the Prime Minister, a Judge may be, prima facie, guilty of misconduct, the opinion of the Prime Minister is binding on the President under Articles 47, 48 and 90 read with Rules of Business.
He said that under the 1973 Constitution, "ours is a parliamentary form of government" and the Prime Minister is the Chief Executive of the country. Therefore, on the advice of the Prime Minister the President forwarded the reference against the CJP to the Supreme Judicial Council. He said that the opinion which the President, if at all, has to form under Article 209 is a tentative, preliminary, and limited in nature.
Qayyum said that the Supreme Judicial Council is the final authority to decide the question of guilt of a Judge, and its report is a judgement within the meaning of the law, and is final. He said that the President had acted in accordance with the requirements of the Constitution and law, and the Reference itself shows due application of mind.
He said that the petitioner has, in fact, not proved or established mala fide either against the President or the Prime Minister. The Federation counsel said that the allegation of mala fide as against the President is not relevant as he acted on the advice of the Prime Minister.
The allegations of mala fide against the Prime Minister cannot be examined as he is not a party before this court and, moreover, examination of the Prime Minister's opinion by any court is barred under Article 48 of the constitution, he said.
He emphasised that Judges (Compulsory Leave) Order 1970 having been validated under Article 270 by Validation of Laws Act 1975 cannot be questioned before any court, and order passed thereunder is valid.
He argued that a Judge, against whom a reference has been filed or proceedings for removal initiated, can be sent on leave, or put under restraint. Therefore, restraining order passed by the President is legal and valid, and the President, being the appointing authority, has power to restrain the Judge from functioning, pending enquiry, he added.
He said that appointment of Acting Chief Justice was in accordance with the Constitution, and the Restraint Order of the SJC was legal and valid since it is the highest judicial tribunal.
The counsel will continue his arguments on Thursday. The 13-member Full Bench comprises Justice Khalilur Rehman Ramday, 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, Justice Hamid Ali Mirza and Justice Ghulam Rabbani.