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June 8, 2019

Heady days on the judicial front


June 8, 2019

ISLAMABAD: A lot will be happening in the judicial domain next week with the possibility of producing critical consequences.

The cases to be heard during the week relate to two prominent politicians – former President Asif Ali Zardari, his sister Faryal Talpur and incarcerated former prime minister Nawaz Sharif - and two judges of superior courts Justice Qazi Faez Isa and Justice Karim Khan (KK) Agha.

The Islamabad High Court (IHC) takes up on Monday the pre-arrest bail plea of Zardari and Faryal Talpur with the National Accountability Bureau (NAB) having publicised that it has issued his arrest warrants to apprehend him the moment his request will be turned down. Zardari is a member of the National Assembly while Faryal Talpur is a member of the Sindh Assembly.

Next day, the IHC resumes hearing into the post-arrest bail application of Nawaz Sharif in the Al-Azizia reference on medical grounds.

On June 14, the Supreme Judicial Council (SJC) will hold preliminary proceedings on a reference filed by President Dr Arif Alvi against Supreme Court judge, Justice Qazi Faez Isa, seeking his removal on the charge of being “guilty of misconduct” under Article 209.

The SJC will also simultaneously hear a reference against Justice KK Agha of the Sindh High Court (SHC).

The top representative bodies of lawyers have hurled ominous threats, unheard of before, of a severe agitation, reminiscent of the 2007 movement in the wake of suspension of the then Chief Justice Iftikhar Muhammad Chaudhry, if the reference against Justice Faez Isa was not dropped forthwith. As per their announcement, they will protest on the day the SJC will open initial hearing against the reputed judge. Not a single voice has been raised from amongst the lawyers’ community against the apex court judge.

On May 30, the SJC issued a notice to the federal government through Attorney General for Pakistan Anwar Mansoor Khan regarding the two references. The SJC is the only constitutional forum that can examine the conduct of superior court judges and recommend their removal. The references accuse the two judges of concealing their assets and call for action against them under Article 209.

In the second letter to President Alvi, Justice Faez Isa has denied the charges leveled against him. However, Justice KK Agha has not so far broken his silence to give his version on the allegations against him. In both letters, Justice Faze Isa demanded a copy of the reference.

Under Article 209, the SJC comprises five top judges including Chief Justice Asif Saeed Khosa, Justice Gulzar Ahmad and Justice Sheikh Azmat Saeed of the Supreme Court, and chief justices of the SHC and Peshawar High Court (PHC) Justice Ahmed Ali M Sheikh and Justice Waqar Ahmad Seth respectively.

The provision says the SJC will consist of the Chief Justice of Pakistan, the two next most senior judges of the Supreme Court; and the two most senior chief justices of the high courts. The seniority of the chief justices of the high courts will be determined with reference to their date of appointment as chief justice otherwise than as acting chief justice, and in case the dates of such appointment are the same, with reference to their dates of appointment as judges of any of the high courts.

If, upon any matter inquired into by the SJC, there is a difference of opinion amongst its members, the opinion of the majority will prevail, and the SJC report to the president will be expressed in terms of the view of the majority. If, on information from any source, the SJC or the president is of the opinion that a judge of the Supreme Court or of a High Court may be incapable of properly performing the duties of his office by reason of physical or mental incapacity; or may have been guilty of misconduct, the President will direct the SJC to, or the SJC may, on its own motion, inquire into the matter. If, after inquiring into the matter, the SJC reports to the president that it is of the opinion that the judge is incapable of performing the duties of his office or has been guilty of misconduct, and that he should be removed from office, the president may remove the judge from office.

Prominent lawyer Barrister Omar Sajjad explained to The News three important points of the article. One, the SJC decision holding a judge guilty of misconduct or physical or mental incapacity, or exonerating him against whom a reference has been filed may come out with a unanimous or majority decision. A majority decision will have the same force as is the one taken with consensus.

Two, the president will direct the SJC to or the SJC may, on its own motion, inquire into the charge of misconduct or physical or mental incapacity against a judge “on receiving information from any source”.

Three, the president “may” remove a judge against him the SJC, after inquiry, expresses the opinion that he is guilty of misconduct or is physical or mental incapable to perform his functions.

On May 23, a division bench of the IHC comprising Justice Amir Farooq and Justice Mohsin Akhtar Kiani admitted Nawaz Sharif’s bail plea in Al-Azizia reference on medical grounds for hearing on June 11. It will also hear the NAB appeal against Nawaz Sharif’s acquittal in another case known as the Flagship Investments reference.

Nawaz Sharif is not feeling well, and on the Eidul Fitr a panel of specialists examined him and conducted different tests for multiple ailments.

He was sentenced to seven years in prison and fined Rs1.5 billion and $25 million in the Al-Azizia reference by an accountability court of Islamabad on December 24, 2018. However, he was acquitted in another reference related to Flagship Investments. Besides, he was also disqualified from holding any public office for 10 years. The disqualification will go into effect following his release from jail after serving the seven-year sentence.

On May 31, the same IHC bench extended interim pre-arrest bail of Zardari and Faryal Talpur in a matter pertaining to alleged laundering of billions of rupees through fake bank accounts. NAB Prosecutor Jahanzeib Bharwana alleged that Zardari is directly involved in case and the NAB has enough evidence to arrest him. He claimed that the NAB has tracked the transfer of Rs1.5 billion to an account linked to the Zardari Group of Companies from an account identified to be fake. He added that the account holder had no idea that the account existed in his name while the transaction was flagged as suspicious by the State Bank of Pakistan as well.

On June 13, Leader of the Opposition in the National Assembly Shahbaz Sharif appears before an accountability court of Lahore in the Ashiana Housing and Ramzan Shugar Mills references with the NAB having demanded that his exemption from appearance be undone.

After the possible eventful week, the Election Commission of Pakistan (ECP) will on June 17 open hearing against the induction of Maryam Nawaz as one of the 16 vice presidents of the Pakistan Muslim League-Nawaz (PML-N). The Pakistan Tehreek-e-Insaf (PTI) members of the National Assembly Farrukh Habib, Maleeka Ali Bukhari, Kanwal Shauzab and Javeria Zafar have challenged her appointment contending that her party office was in conflict with the law and Constitution. They claimed that she was ineligible to hold public office because of her conviction by an accountability court.

At the same time, the IHC will resume hearing into petitions challenging eligibility of Maleeka Ali Bukhari, Tashfeen Safdar and Kanwal Shauzab.

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