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October 30, 2019

Justice Isa’s petition: SJC can’t throw away presidential reference, says SC

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October 30, 2019

ISLAMABAD: Supreme Court Justice Umar Ata Bandial maintained on Tuesday that the Supreme Judicial Council (SJC) could not throw away the presidential reference filed against SC judge Justice Qazi Faez Isa.

The Supreme Court was informed that the government had engaged private security agencies for tracing out the record pertaining to activities of Justice Qazi Faez Isa in the United Kingdom during the past 10 years as well as finding out details of his family properties.

A 10-member full court headed by Justice Umar Ata Bandial resumed hearing into identical petitions, challenging the presidential reference filed against Justice Qazi Faez Isa for allegedly owning properties abroad but he did not disclose them in his wealth returns.

Continuing his arguments, Munir A Malik, counsel for Justice Qazi Faez Isa, submitted as to what was themode of surveillance, whether it was made through phone tapping or hacking of emails of the family members of the petitioner or a protocol officer was assigned the task to inquire into the properties, he cannot say in this regard.

“But I have instructions from my client who was prepared to put before the court an affidavit under seal wherein, he could explain in detail as to how he and his family members were subjected to surveillance,” Munir A Malik offered.

“I would object to the sort of arguments and the way the learned counsel for the petitioner is submitting before the court which is hearing a petition filed under Article 184(3) of the Constitution”, Attorney General Anwar Mansoor Khan interrupted after rising to the rostrum.

He contended that evidence cannot be produced before the court during the instant matter, being heard under Article 184(3) of the Constitution.

The AG submitted that there was another forum where evidence could be placed before it. Justice Umar Ata Bandial, however, observed that prima facie the petitioner has made allegations that the presidential reference had been filed against him on mala fide intentions.

“Let the counsel for the petitioner establish the facts regarding mala fide”, Justice Bandial told the Attorney General. Munir A Malik, however, questioned as to how complainant Abdul Hameed Dogar had got exact address of properties of his client despite the fact that he had never been to London.

Justice Munib Akhtar, another member of the bench, observed that the learned counsel was just drawing inference from the incidents but not relying on facts to establish the mala fide. The counsel, however, contended that even the federation has never given any explanation as to how it got the details regarding London properties.

He submitted that head of Asset Recovery Unit (ARU) had dispatched a letter on May 20, 2019 to Federal Law Minister for conducting an inquiry. “Once the reference is filed before the Supreme Judicial Council (SJC), what business of conducting an investigation is meant for,” Malik questioned adding that the collection of evidence is the job of the Council but not in the domain of ARU.

He submitted that the judiciary should be insulated of victimisation by the executive while discharging its functions. Justice Mansoor Ali Shah questioned as to how investigation was conducted without bringing into the notice of the president and prime minister. Justice Maqbool Baqir observed that only the Supreme Judicial Council is mandated to conduct an inquiry into the misconduct of a judge.

Munir A Malik while replying to a court query said that the collection of material is to be authorised by the president but before filing a reference in the Supreme Judicial Council.

Justice Munib Akhtar asked the learned counsel whether the Supreme Court could send the matter to the Supreme Judicial Council to which Munir A Malik replied that the jurisdiction of the Council is very limited and matter related to mala fide, coram non judice, etc were beyond the scope of Council but the apex court, however, has the jurisdiction to review it.

Coram non judice is used to indicate a legal proceeding that is outside the presence of a judge (without a judge), with improper venue, or without jurisdiction. On the question of maintainability, Munir A Malik cited the apex court judgment, delivered in former chief justice Iftikhar Muhammad Chaudhry case, wherein a presidential reference against the former chief justice of Pakistan was quashed by the top court on the basis of mala fide intent.

The learned counsel read out observations given by the court on pages 82 and 85 of the instant judgment and submitted that the apex court has the authority to carry out an ordinary judicial review of the conduct of executive authorities in relation to a reference against a judge.

Meanwhile, the court adjourned the hearing until next Monday. Justice Umar Ata Bandial praised Munir A Malik for presenting his arguments and raising important law points. Earlier, during the course of the proceedings, Munir A Malik in pursuance of the court’s earlier order, gave a complete travel history of Justice Qazi Faez Isa and his family members while coming to Pakistan as well as visiting United Kingdom.

Bilal Manto, counsel for one of the petitioners, came to the rostrum and recalled that in his petition, he had sought some data regarding the volume of complaints so far decided by the Supreme Judicial Council.

Justice Umar Ata Bandial, however, told the counsel that his application relates to the administrative as well structure of the Council, however, he said that at present the court is focusing on the main petition, filed by the learned judge of the apex court but assured the counsel that the court would look into his application later on.