Reference against Justice Iftikhar Filed on PM Advice: Pirzada
'Pakistan Times' Federal Bureau

ISLAMABAD: Counsel of the Referring Authority, Syed Sharifuddin Pirzada, said at the full court hearing of petitions of Justice Iftikhar Muhammad Chaudhry and others on Wednesday that the President had filed the reference on the Prime Minister's advice.

To a query from a member of 13-judge bench, he said that a reference filed without the advice of prime minister would not be in accordance with the constitution.

Pirzada exercised right of reply to the arguments presented by the counsels of Justice Iftikhar and others on the question of maintainability of the petitions as well as immunity to the President from being impleaded.

Referring to the issue whether proceedings of the Supreme Judicial Council (SJC) should be open or in camera, Pirzada said in his opinion it should be left to the judge to choose open or in camera proceedings.

He also said that in his opinion a remedial forum should be provided to aggrieved parties with regard to SJC recommendations.

The counsel of the Referring Authority had not completed his right of reply when the court rose for the day. He will resume his arguments when the court reassembles Thursday morning.

During the proceedings Wednesday, Justice Khalil-ur-Rehman Ramday, head of the full court, suggested to Sharifuddin Pirzada to intervene and play a role towards finding a way out in the "matter."

"Pirzada Sahib, you are our elder and our asset. As elder you should intervene and try to find a way. You have a stature and both parties have respect for you," Justice Ramday said.

In reply when Pirzada said that "I will do 'dua' (prayer)," Justice Ramday observed: "You should do 'dua' but also look for 'dawa' (remedy)."

The counsel said that Article 248 of the constitution provides the the President immunity from being impleaded.

Pirzada recalled that in such cases in the past judges had been asked to resign or face reference proceedings. He gave a number of examples, including that of Justice Douglus, Chief Justice of Lahore High Court in 1942, who was asked to resign or face the reference by the then Privy Council.

Giving another example, he said, Mr. Jawaharlal Nehru had also summoned A.K.Sinha, a judge of the Alahabad High Court, and asked him to resign or face the reference.

Ahmed Raza Kasuri, who is representing the Federation, completed his right of reply arguments on Wednesday. He said that SJC has the status of a special court and is a constitutional body.

He said that the petitions filed by Justice Iftikhar and others, who have challenged the SJC composition and powers, were not maintainable.

Kasuri contended that when proceedings on the reference under Article 209 of the Constitution and objections regarding composition of the Council were pending before the SJC then this matter could not be challenged in the Apex Court.

He further said it was a misconception that SJC had been constituted without a Chief Justice.

Kasuri said an Acting Chief Justice in terms of Article 180 read with Article 260 is a Chief Justice for all practical purposes and hence SJC is a properly constituted judicial forum.

The counsel said that it is constitutional duty of the Apex Court to "vigilantly and aggressively watch and protect the paramount interest of the state."

The full court comprises Justice Muhammad Nawaz Abbasi, Justice Faqir Muhammad Khokhar, Justice Mian Shakirullah Jan, Justice M. Javed Buttar, Justice Tassadduque Hussain Jillani, Justice Saiyed Saeed Ashhad, Justice Nasir-ul-Mulk, Justice Raja Fayyaz Ahmed, Justice Ch.Ijaz Ahmed, Justice Syed Jamshed Ali, Ad-hoc Justice Ghulam Rabbani and ad-hoc Justice Hamid Ali Mirza.●