Re: Pakistan’s top judge is suspended (Merged)
**No reference can be filed against CJP: Justice Khosa
**By Ansar Abbasi
ISLAMABAD: With the government failing to overcome the fallout of the March 9 judicial adventure, a legal opinion not so popular but reported in the PLD is seen by certain quarters as a possible way out of the prevailing crisis for the government.
**
Written by Justice (retd) Asif Saeed Khan Khosa and published on pages 17-24 of the 1996 PLD (Pakistan Legal Decisions) journal, the article concludes that the president has no authority under the Constitution to file a reference against the chief justice of Pakistan.
***Not many top legal minds of the country are ready to buy such an interpretation of the Constitution for the reason that how any public office holder could be given total immunity from any check.
*A lawyer, Barrister Zafarullah Khan, has already filed a petition with the Supreme Court pleading that under Article 209 of the Constitution a reference could not be filed against the chief justice of Pakistan. It is believed that the SC will hear Khan’s petition on Monday.
In his article, Justice (retd) Khosa argued that this might appear as a lacuna in the Constitution but the president’s power to direct the Supreme Judicial Council (SJC) to inquire into the capacity or conduct of a judge of the Supreme Court does not extend to giving of such a direction in respect of the chief justice of Pakistan.
It says that the provisions of Article 209 of the Constitution are exhaustive and otherwise, self-explanatory except in one respect, ie a situation where the president may decide to direct the SJC to inquire into the capacity or conduct of the CJP.
According to Khosa, the Article 209 empowers the president to proceed against a judge of the SC or of a high court. By virtue of Article 260 of the Constitution, the article reads, a “judge” in relation to the SC include the CJ of that court. Therefore, it may be argued that a power exercisable in respect of a judge of the SC also includes the CJP. “However, this approach is simplistic, to say the least. It fails to take into account the opening words of clause (1) of Article 260 according to which the expressions defined therein are to have the meanings assigned to them therein ‘unless the context otherwise requires’.”
Referring to Article 209 of the Constitution, the article said that Clause (3) of the article, which deals with replacement of a member, is silent about the CJP whereas it expressly provides for replacement of the members of the Council belonging to the other two categories.
“This further shows that Article 209 conceives the chief justice of Pakistan as a category different from the other members of the Council, even from the two judges of the Supreme Court who are members of the Council with reference to the Supreme Court. This separate treatment of the chief justice of Pakistan highlights the fact that he is a member of the Supreme Judicial Council not as another Judge of the Supreme Court but ex officio as the highest judicial officer of the country.”
Khosa argues that in case an inquiry is to be conducted into the capacity or conduct of the CJP then neither there is any express provision for his replacement nor the third most senior judge of the SC joining as member of the council in his place can be termed as the CJP so as to complete the composition of the Council.
The retired justice added that a perusal of the Constitution as a whole reveals that the CJP is not just a Judge of the SC discharging judicial functions along with other judges but by virtue of that exalted office held by him, he is also to discharge many other functions which may not have any relation to the SC so as to attract the provisions of Article 260(1) of the Constitution. In all those matters, he said, he (CJP) is not performing any judicial functions as a judge but acts as ex-officio or in his capacity as a persona designata. “In all such matters the words ‘chief justice of Pakistan’ are not interchangeable with ‘judge’ or vice versa.”
For example, he said the CJP administers oath to the president, auditor general, chief election commissioner while acting as persona designata and, unless nominated by the CJP himself, no other judge of the SC can perform that function. Khosa also referred to certain other constitutional functions of the CJP that not judicial but required to be done by the CJP. Even “consultation” with the CJP required by Articles 177(1), 181(1), 193(1), 200 (1) and 203-F (3)(b) of the constitution is also to be viewed in the context of the CJP being a persona designata in those respects. A similar distinction between a judge of the SC and the CJP is clearly recognizable from the provisions of Articles 176, 180, 183, 275(2)(a) and the fifth schedule of the Constitution.
In Khosa’s view, the CJP has been designated to be an ex officio member of the SJC and as persona designata. “The Supreme Judicial Council is only a tribunal of inquiry which does not perform judicial functions,” the PLD article said, adding, “The functions of this Council or of its members are certainly not ‘in relations to the Supreme Court’.”
Khosa said even if the alternate interpretation is accepted, still the position of the CJP as a member of the SJC remains unaffected even when it is to inquire into his own capacity or conduct. “This is so because clause (3) of Article 209 does not contemplate his replacement in such a situation and, indeed, his replacement by another judge of the Supreme Court, who cannot possibly be designated as a chief justice of Pakistan for such purposes, cannot complete the composition of the Supreme Judicial Council contemplated by clause (2) of Article 209.”
The retired justice said that the CJP is a necessary component of this council ex-officio in his capacity as a persona designata and because of this he is irreplaceable from the council.
Must say…not a lot of support for govt in the media:hmmm: