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Friday March 29, 2024

Presidential Reference case: If PM is powerless whole system will collapse: SC

By Sohail Khan
January 22, 2020

ISLAMABAD: The Supreme Court was told on Tuesday that neither the prime minister nor the president had the constitutional power to issue directives for holding an inquiry against a judge of the superior court while the Supreme Judicial Council (SJC) was the competent authority to order an inquiry into the misconduct of a judge.

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

Continuing his arguments, former chairman Senate Mian Raza Rabbani, counsel for the Sindh Bar Council, submitted that the Executive has no power to go into the matter of an inquiry against a judge of the superior court for misconduct. Elaborating his point, Raza Rabbani contended that the prime minister and the president cannot order an inquiry into the misconduct of a judge of superior court but only the Supreme Judicial Council (SJC). "And if both order an inquiry against a judge, it will be unconstitutional," Raza Rabbani contended.

Justice Muneeb Akhtar, another member of the bench, asked as to whether the Supreme Judicial Council (SJC) would be bound by the findings of the president or throw it out holding that it would itself hold an inquiry. Raza Rabbani replied that both the president and prime minister cannot order an inquiry and if they do so, it would be unconstitutional. “My humble submission would be that it would be for this court to throw the reference on the basis of unconstitutional and mala fide," Rabbani contended. The former Senate chairman submitted that after receiving information or compliant against a judge, the president after giving a tentative view is required to refer the matter to the Supreme Judicial Council to examine it under Rule 7 and if it found that a case is made up, it can then order an inquiry.

Referring to the issue of collection of material for the reference, Mian Raza Rabbani submitted that the executive authority was limited to “collection” of information and evidence and that even the president cannot authorize an inquiry on his own.

Justice Munib Akhtar, however, observed that the Constitution allows collection of information and evidence to the executive and the president can authorize an inquiry before sending a reference to the SJC. Raza Rabbani, however, disagreed and contended that collection did not warrant an inquiry and referred to the Black’s Law dictionary drawing distinctions between collection of information with "inquiring into the matter".

Justice Faisal Arab, another member of the bench, observed that an inquiry is warranted by the executive and the president may authorize the same to ascertain the authenticity of facts contained in a given complaint against a judge of the superior judiciary. "The word inquiry in Article 209 of the Constitution only be used for Supreme Judicial Council (SJC)," Rabbani submitted.

Raza Rabbani referred to Article 47 of the Constitution to show that the role and authority of the president under Article 209 must follow the scheme of the Constitution as obtains in the process of impeachment of the president when the chairman Senate or the speaker of the National Assembly can only send the motion to the House (Parliament) and cannot order an inquiry themselves. Hence, he submitted that in the same way, the president must send the reference to the Supreme Judicial Council (SJC) that could inquire into the matter under the prescribed Rule 7. Rabbani contended that following the SJC rules, the CJP sends the Reference for assessment to the next senior member (Judge) to see if the complaint warranted further action. “It is for that judge to decide whether or not the reference has a prima facie case," Rabbani submitted.

Justice Umar Ata Bundial observed that in order to make the Article 209 workable, there has to be some mechanism to verify the content of a complaint against a judge of the superior judiciary. Raza Rabbani submitted that president does not act independently but on the advice as mentioned in Article 48 of the Constitution and functions his duties in terms of consultation.

In this respect, he cited Clause b of Article 196 of the Constitution as well as articles 181, 182, 193, 197 (2) saying under these articles, the president has to function his duties with consultations of chief justices for the appointment of judges. "This was further cemented in the 18th Constitutional Amendment when the judiciary was extracted totally from the control and lever of Executive," Raza Rabbani contended.

The learned counsel further submitted that a Judicial Commission was constituted and a Parliamentary Committee on the appointment of Judges as well. He, however, submitted that the prime minister has no role in the appointment of judges but plays as a post office.

At this, Justice Umar Ata Bandial observed that the prime minister has no role in appointment of judges of the superior courts but he is the head of Executive. (Jang report adds: He said prime minister’s is a constitutional office and he is head of the government and leader of the House. If the premier is powerless the whole system would collapse. If there is no role of the prime minister how could system run, he questioned.) “He is the head of the country and a majority leader of parliament and this court respects him," Justice Bandial remarked. "I too respect the prime minister," Rabbani replied.

Meanwhile, the court adjourned the hearing for today (Wednesday) wherein Raza Rabbani will conclude his arguments and will be followed by Rashid A Rizvi, former President Supreme Court Bar Association (SCBA).