Justice Isa case: ‘President didn’t apply his mind’

ISLAMABAD: The Supreme Court (SC) was told on Monday that immunity could not be extended to unconstitutional acts saying the president, the prime minister as well as ministers are bound to act in accordance with the Constitution.

A 10-member full court of the apex court headed by Justice Umar Ata Bandial resumed hearing into the identical petitions, challenging the Presidential Reference, filed against Justice Qazi Faez Isa for allegedly not disclosing foreign properties of his family members in his wealth statements.

Other members of the full court are Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Muhammad Qazi Amin Ahmed.

Munir A Malik, counsel for Justice Qazi Faez Isa while continuing his arguments elaborated extensively on the question of immunity in the matter in hand and contended that immunity could not be extended to unconstitutional acts. He submitted that the President while sending the reference to the Supreme Judicial Council (SJC) did not apply his mind but relied on the advice of the prime minister and his act is unconstitutional.

He submitted that the President, the Prime Minister as well as Law Minister be impleaded as party in the instant matter adding that the reference was based on mala fide intention while the three office holders were behind the filing of the instant reference.

Munir A Mlaik further contended that an immunity could be extended to a minister to the extent of his official duties and functions but if he was found to misuse his official functions, the immunity could not be extended to him.

The learned counsel read out Article 248 of the Constitution that relates to protection to President, Prime Minister etc. The Article reads that the President, a Governor, the Prime Minister, a federal minister, minister of state, the chief ministers and a provincial minister shall not be answerable to any court of law for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions.

The learned counsel cited judgments of Chaudhry Zahoor Elhai verses Zulfikar Ali Bhutto as well former Chief Justice Iftikhar Muhammad Chaudhry’s case adding that it was held by the apex court that immunity could not be extended to the unconstitutional acts.

Justice Munib Akhtar observed that there were serious allegations levelled against former president Pervez Musharaf in Iftikhar Chaudhry’s case. Are there specific allegations of mala fide in your petition against the President? Justice Munib Akhtar asked Munir A Malik.

Malik replied that persons against whom allegations of mala fide were filed must be impleaded in the instant matter adding that facts pertaining to mala fide were available on the record.

He submitted that instead of applying his own mind, the President acted on the advice of the Prime Minister but not on the cabinet. Thus, not applying his own mind, the President violated the constitution.

At this Additional Attorney General Chaudhry Aamir Rehman quickly went to the rostrum and submitted that the President has categorically denied in the federation reply stating that he did apply his mind while sending the reference to the Supreme Judicial Council (SJC).

Justice Umar Ata Bandial observed that the President has approved the reference but Munir Malik contended that he has only relied on the advice of the Prime Minister but not on the cabinet.

“Do you say that the President signed it without reading it”, Justice Faisal Arab, another member of the bench asked the learned counsel. Maybe he thought that as it was sent by the Prime Minister, Munir A Malik replied.

Justice Mansoor Ali Shah, another member of the bench inquired as to whether the learned counsel argument regarding applying the mind meant that all the material for filing a reference are required to be collected under the supervision of the President? Under what law was the collection of mater made for filing a reference? Justice Mansoor Ali Shah further asked.

At this Justice Umar Ata Bandial said that these questions relates to the Asset Recovery Unit (ARU) adding that the Unit was established in view of the apex court judgment delivered in 2018.

Malik, however, replied that the president should have applied his mind as to how the material was collected. Justice Maqbool Baqir asked the learned counsel to inform the court today (Tuesday) as to whether the executive is empowered to conduct an inquiry against a judge through another forum other than specified in law.

Earlier, the counsel argued on the question of the jurisdiction of the Supreme Judicial Council and submitted that the scope of the Council is very limited adding that it is a domestic forum mandated only for conducting an inquiry against a judge of the superior court for misconduct but not the President and federal government.

He contended that as to why this court should not refer the matter to the Supreme Judicial Council but hear it under Article 184(3) of the constitution.

He further submitted that the SJC is bound under the constitution to act on a reference but cannot strike down it adding that only the Supreme Court can strike down a reference filed on the basis of mala fide. He recalled that the apex court in Iftikhar Chaudhry’s case had held that the reference could be heard by the apex court under Article 184(3) of the Constitution in the open court.

He said that the proceedings in the Supreme Judicial Council held in-camera while the proceeding before the apex court held in open court, Justice Munib Akhtar observed that the judge could request for holding the proceedings in an open court and recalled that Justice Shaukat Aziz Siddiqui’s reference was heard in an open court on his request. Meanwhile, the court adjourned the hearing till today (Tuesday) at 11:30am.