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January 23, 2020

Reference against Justice Faez Isa: ARU can call any agency to inquire into any matter, SC told

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January 23, 2020

ISLAMABAD: The Supreme Court was told on Wednesday that the Asset Recovery Unit (ARU) can call upon any intelligence agency functioning under the federal government to inquire into a matter not specified or collection of material which is against the independence of judiciary.

A ten-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 allegedly 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.

Concluding his arguments, former chairman Senate and counsel for Sindh Bar Council Mian Raza Rabbani produced before the court a notification regarding establishment of the ARU. He informed the court that under terms of reference 7 of the ARU, it can call upon any intelligence agency functioning under the federal government to inquire into a matter not specified or collection of material which is against the independence of judiciary.

Justice Umar Ata Bandial observed that such process tantamount to a fish hunt.

Raza Rabbani said that the ARU has not any legal status as it was not established under any law of the land hence its status is illegal.

He further submitted that Justice Qazi Faez Isa delivered a judgment in Faizabad sit-in case while Justice KK Agha gave verdict on May 12, 2017 incident due to which references were filed against them. He further said the federal government as well as MQM had challenged before the apex court the verdict of Justice Qazi Faez Isa.

“It would be unfair to start accusing a political party,” Justice Bandial told Raza Rabbani and questioned as to whether the counsel himself was giving this impression or he was told by someone.

Raza Rabbani replied that the workers of the MQM had flooded the court premises during the course of hearing which is more evident from giving an impression.

Concluding his arguments, Raza Rabbani pleaded the court to quash the presidential reference filed against Justice Qazi Faez Isa.

“The entire exercise done in terms of advice of the prime minister, the investigation and collection of material for making the reference was unconstitutional hence the instant presidential reference is liable to be quashed,” Rabbani pleaded.

Meanwhile, commencing his arguments, Rashid A Rizvi, counsel for Sindh High Court Bar Association, Karachi Bar Association as well PFUJ, submitted before the court that the ARU has no legal status therefore any investigation, inquiry or any material collected for making the presidential reference against a judge of the Supreme Court is illegal, unconstitutional and liable to be quashed by this court.

Referring to Clause 3 and 5 of Rules of Business, he contended that the ARU does not fall under any ministry or division.

“One aspect is to be kept in mind that filing a reference against a judge of the Supreme Court is a stigma on him which lasts forever and through his whole career.” Rashid A Rizvi contended.

The counsel questioned as to whether the president is bound to send every complaint he receives to the Supreme Judicial Council (SJC). He recalled that the reference filed against Justice Qazi Faez Isa was numbered at 476 meaning that before it 475 references were rejected in a year. He contended that the SJC heard only those references filed against Justice Shaukat Aziz Siddiqui and Justice Farukh Irfan.

“If every reference is entertained by the SJC then the Supreme Court will not be able to adjudicate upon other matters but the references,” Rizvi submitted.

Rashid A Rizvi also referred to the clauses pertaining to the oaths of president and prime minister, adding that every step of the president and prime minister is to preserve and protect the Constitution.

Justice Yahya Afridi said suppose an illegal authority has collected material for the reference illegally and not in accordance with law but the material collected is certified, should the president discard that material or will pass on to the SJC?

“Suppose there is a property on my name but I did not disclose it in assets returns and information pertaining to my property is collected by an illegal authority or in illegal manner but with certified documents then will the president discard this information or pass on to the Council,” Yahya Afridi asked the counsel.

“Still the president has to perform according to his own oath,” Rashid A Rizvi replied, adding that if the president does not perform in accordance with his oath than tomorrow an SHO may file a complaint with the president stating that he is neighbour of a judge having vehicles and properties and it should be investigated.

The court adjourned the hearing until next Monday.