ISLAMABAD: The Supreme Court (SC) was told on Monday that the Supreme Judicial Council (SJC) is competent to conduct an inquiry into an allegation against a judge but the process adopted for holding an inquiry against a judge through state functionaries like Federal Board of Revenue (FBR), Inter-Services Intelligence (ISI) and Federal Investigation Agency (FIA) is illegal.
A 10-member full 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 his foreign properties in his wealth returns.
Other members of the bench are 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.
Commencing his arguments Senate former chairman Raza Rabbani, counsel for Sindh Bar Council submitted that the Supreme Judicial Council (SJC) is the competent authority to hold an inquiry against a judge of the superior judiciary.
The learned counsel contended that the manner in which an inquiry was started against Justice Qazi Faez Isa by the state functionaries like FBR, ISI and FIA was illegal.
“Holding an inquiry against a judge of the superior court through FBR, ISI and FIA is something that will open the floodgate of chaos in the society,” Raza Rabbani submitted. It is pertinent to mention here that apart from Justice Qazi Faez Isa, various Bar Associations including Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC), Sindh High Court Bar Association, Quetta Bar Association through its president Muhammad Asif Reki, Balochistan Bar Council, Balochistan High Court Bar Association, Sindh Bar Council through former Raza Rabbani as well as a joint petition filed by advocate Abid Hassan Manto and I A Rehman have also challenged the Presidential Reference
Mian Raza Rabbani submitted when a complaint is filed with the Chief Justice of Pakistan against a judge, the Chief Justice refers the complaint to a judge for examining it and when the said judge after examining the complaint came to a conclusion that a case could be made up hence he sent it to the Supreme Judicial Council.
Senate former chairman while referring to the background of the exercise made by the state functionaries including the Asset Recovery Unit (ARU) and FIA and involvement of federal minister for law etc before filing of the Presidential Reference against Justice Isa, contended that only the Supreme Judicial Council is competent to conduct an inquiry against a judge of the superior courts.
“In order to maintain the independence of the superior judiciary, the Supreme Judicial Council (SJC) is empowered to examine and assess the conduct of a judge”, Raza Rabbani contended.
Justice Faisal Arab, another member of the bench referred to clause 5 of Article 209 of the Constitution to which Mian Raza Rabbani explained in details while reading out clause 5 and 6 Article 209 of the Constitution.
Justice Umar Ata Bandial observed that in this case there is a complaint which is unsubstantiated but there is an allegation against a judge for holding properties abroad adding that the Council starts its inquiry after issuing a notice to the concerned judge.
Justice Bandial questioned as to whether the judge should not answer to the allegations after receiving the Council’s notice.
Justice Umar Ata Bandial further observed that prima facie the President was provided contents adding that whether this contents were provided legally or illegally it’s an another matter however, he questioned the maintainability of the instant petitions , challenging the Presidential Reference filed against Justice Qazi Faez Isa.
He asked Mian Raza Rabbani that as per his arguments, that only the Supreme Judicial Council is competent to conduct an inquiry into an allegation against a judge then in such a situation whether the instant petitions, challenging the Presidential Reference will be maintainable.
He observed that since the Council has issued notice and also started the proceedings and even the Council can ask itself for the collection of material for the instant matter.
“Kindly read the facts and enlighten us on the matter”, Justice Bandial asked Mian Raza Rabbani.
Mian Raza Rabbani, however, replied that he will argue on the matter and will answer the court queries today adding that he will also conclude his arguments.
Earlier, Mian Raz Rabbani gave an historical background of Article 209 as well as powers of the President.
He cited various articles of Constitutions of 1956, 1962, 1973 as well as Government of India Act 1935 besides deliberating upon the role of President under Article 48 of the Constitution in exercise of his functions, while acting on advice of the Prime Minister.
The learned counsel touched Article 151 of 1956 Constitution, Article 128 of the 1962 Constitution besides referring to a debate and discussion held in Parliament pertaining to a draft passed by the National Assembly on March 28, 1973 regarding Articles 209, 210 and 211 of the Constitution.
Mian Raza Raza Rabbani submitted that the powers of the President were limited with the passage of time adding that earlier the President was empowered to hold referendum on important national issues and contended that General Ziaul Haq held a referendum on the name of Islam, however, he said that this court is not a political forum hence he avoids to talk on this.
The learned counsel, however, contended that as per constitution, now the president is required to take approval from the joint sitting of Parliament for holding a referendum. Meanwhile, the court adjourned further hearing till today (Tuesday) wherein Mian Raza Rabbani will conclude his arguments.
