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October 9, 2019

Justice Faez Isa case: President, PM, law minister not answerable to court, says Govt

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October 9, 2019

ISLAMABAD: The government on Tuesday informed the Supreme Court of Pakistan that the filing of presidential references is not without jurisdiction.

The Federation filed its reply in the Supreme Court on a petition filed by Justice Qazi Faez Isa, challenging the presidential reference filed against him.

The government submitted that bold assertions of mala fide in the absence of specific allegation without any shred of evidence can't be taken into consideration. It contended that to establish a case of mala fide, some specific allegation is necessary and it must be supported by some prima facie proof to justify the court to call upon the other side to produce evidence in its possession. "The constitutional petition is not maintainable", it contended. The Federation termed Paragraph 8 of the Constitution incorrect and denied it. Admittedly, at the time of purchase of the properties, the petitioner's son was aged 23 whereas the daughter of the petitioner was 26, says the federation.

It submitted that it is incorrect that the petitioner is under no obligation to disclose information regarding acquisition of property in his name. It is the case of the Federation that the children and spouse of the petitioner had no independent source of income and therefore were his dependents as such the petitioner was under legal obligations to disclose the acquisition of the property and the source of the funds used for the purpose, the reply added.

The Federation contended that under Article 5of the Constitution, obedience to the Constitution and the law is an inviolable obligation of every citizen of Pakistan. "Violation of law imposes either criminal liability or civil liability according to the nature of violation,” says the Federation, adding that in both cases, the conduct of a person is prejudicial and cannot be condoned. The Federation prayed to the apex court to dismiss the instant petition, holding that the presidential reference was lawfully filed without any mala fide, malice ulterior motives or to achieve collateral purposes. It stated that the presidential reference does not in any way undermine the independence of judiciary, rather the process of accountability of judges by its own peers enhances the independence of the judiciary.

The president of Pakistan has filed the reference in exercise of his constitutional duties under Article 209(5) of the Constitution. During proceedings, a question was raised before the Supreme Court of Pakistan on Tuesday if Article 209 of the Constitution can be used to punish a judge for delivering bold judgments.

A 10-member larger bench of the apex court headed by Justice Umar Ata Bandial resumed hearing a petition filed by Justice Qazi Faez Isa as well as the bar associations and bar councils, challenging the presidential references filed against two judges of the superior courts. Other members of the bench were Justice Maqbool Baqir, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Muhammad Qazi Amin Ahmed.

Munir A Malik, counsel for Justice Isa, told the court that a deliberate campaign was designed to punish his client for delivering some judgments which were disliked. "This campaign was meant to harass the judge for his bold verdicts and this is my case," Malik said and added that his client and his family members were spied upon and this issue has to be addressed during instant proceedings. The counsel questioned as to whether Article 209 of the Constitution can be used to punish a judge for delivering bold judgments.

Justice Umar Ata Bandial told Malik when his client was the chief justice of the Balochistan High Court, he bought three properties abroad, asking if that wasn’t the case. "You should come up with those points too", Justice Bandial asked Malik. The judge asked the counsel to proceed with his allegations he made in his petition regarding malice. "Tell us the grounds for malice and we would like to hear you in this regard", Justice Bandial asked him. Malik referred to the court's last order wherein the attorney general was directed to file his concise statement within a week.

AG Anwar Mansoor Khan however, excused for not submitting his reply within the required time due to his engagements abroad for important matters. He however, said his reply is ready and will be filed shortly. Similarly, before filing the reply, he gave Malik in advance a copy of his reply in the court. The court then asked Malik to start his arguments. However, the counsel sought some two weeks to argue and after going through the concise statement of the attorney general. "Let me go through the replies first, I am not running away but will argue afterwards", Malik submitted. He contended that this is not an ordinary case and the eyes of people are on this court. "So what is urgency," Malik questioned.

Justice Bandial observed that people have confidence in this court, adding that the court is not in a hurry, but one of its members will be away from Islamabad after two weeks. "So we need to decide it in accordance with the law and the Constitution.” The judge observed that for now the court is only listening to arguments surrounding the maintainability of the petitions. The court then with the consensus of the bench and counsel for the petitioners decided that the court will resume its hearing from next Monday October 14 and asked Munir A Malik to commence his arguments.

At the outset of the hearing, Munir A Malik contended that as his client had said in his petition that allegations against him are based on mala fide intentions, it has not been answered in the reply to the petition. He pointed out that the Supreme Judicial Council the other day filed its reply through the attorney general instead of its own secretary.

Justice Bandial observed whatever they have done is completely impartial. "Let's decide the case in accordance with the law and the Constitution." The judge told the counsel that the case had already been deferred because of his illness. Similarly, the court observed that two judges had also recused themselves from the bench because of the petitioner's objections, which was a painful process. "We have to decide it in accordance with the law and you should be prepared on your side", Justice Bandial asked Malik.

The counsel for Justice Isa contended that the instant case is a trial of the entire judiciary. "Hence it would be his utmost submission to this larger bench of the apex court to protect this institution and uphold law and Constitution."

Rashid A Rizvi, counsel for the Sindh High Court Bar Association, submitted that they all are party to the case. Hence copy of the concise statement filed by the attorney general should also be provided to all the petitioners so that they may prepare to argue before the court.

The court directed the attorney general to provide a copy of his reply to all petitioners in the case. During the hearing, Raza Rabbani, counsel for the Sindh Bar Council, submitted that he has diverted the attention of the court towards Rules of Procedure 2005 in his petition. He contended that this is not an isolated matter and needs consideration of the apex court.

Justice Bandial assured Rabbani that he will be heard after the counsel of the main petitioner concludes his arguments. Bilal Manto, another lawyer, informed the court that he had sought complete record of the findings in complaints so far decided by the Supreme Judicial Council (SJC). He requested the court to provide him with the said material so that he could make preparations for his arguments.

The court told the lawyer that his request will be considered later on and adjourned the hearing until October 14.

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