Ali Khan [Washburn University School of Law]: "The Pakistan Supreme Court has asked the government lawyers to disclose the procedure under which the President has sent the reference against the Chief Justice to the Supreme Judicial Council (SJC). The Court is particularly interested in determining the scope of "discretion" that the President may have in forming the "opinion" in support of the reference.

Article 209(5) of the Constitution provides that the President "shall direct the SJC to inquire into the matter" if the President "is of the opinion" on the basis of "information from any source" that a judge "may have been guilty of misconduct." The text seems to import that the President has little discretion but to refer the matter to the SJC if credible information has been received showing the probability of judicial misconduct. The miscounduct information need not be bulletproof, and the President's opinion made on the basis of available information need not be unassailable. After all, the President will be directing the SJC to inquire into the matter. The SJC may disagree with the President and may view the information about the judge's alleged misconduct differently.

However, Article 209(5) does not confer a personal power on the President. Nor does the Article grant a political power that the President may use to undermine the independence of the judiciary. Article 209(5) enumerates an executive power that must be exercised within the constraints of the Office of the President. The President has numerous constitutional powers. Prudence demands that he exercise each constitutional power in a responsible manner. The complexity of modern government and the rule of law both require that the President solicit professional input before exercising any constitutional power. Great damage is done to the state when the President acts upon his personal opinions without expert advice. Removing the Chief Justice of Pakistan is no small matter. Did the President consult his legal advisors? The Supreme Court may want to know whether the President received any written professional evaluation of the incriminating information against the Chief Justice. If the President exercised the Article 209(5) power without the written advice of any legal experts, the reference he sent to the SJC was based on a constitutionally flawed procedure of forming the required opinion."