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January 28, 2020

Justice Faez Isa case: Superior court judge can’t be tried on basis of material collected illegally


January 28, 2020

ISLAMABAD: The Supreme Court was told on Monday that a superior court judge could not be proceeded against for misconduct under Article 209 of the Constitution on the basis of material collected by an illegal authority and through an illegal manner.

A ten-member full court, headed by Justice Umar Ata Bandial, resumed hearing of a set of 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 included 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, Rashid A Rizvi, counsel for Sindh High Court Bar Association, Karachi Bar Association as well PFUJ submitted before the court that the Asset Recovery Unit (ARU) had no legal status; therefore, any investigation, inquiry or any material collected for making the presidential reference against a judge of the Supreme Court was illegal, unconstitutional and liable to be thrown out.

Replying to a question asked by Justice Yahya Afridi on last hearing, the counsel contended that any material if collected by an authority not authorized by law or collected through an illegal manner should be thrown out.

Justice Yahya Afridi, a member of the bench on last hearing, asked Rizvi, 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 pass it on to the Supreme Judicial Council?

Replying to the judge question, Rashid A Rizvi cited various judgments of the apex court and high courts and submitted that if a material was collected which was not authorized by law cannot be taken into consideration and on the basis of such material, no proceedings of misconduct could be initiated against a judge of the superior court under Article 209 of the constitution.

Hence the Asset Recovery Unit (ARU) being an illegal authority and which had collected material through an illegal manner should be thrown out.

The counsel further submitted that president of Pakistan did not go through the reference but sent it to the Supreme Judicial Council for initiating proceedings of misconduct against the petitioner under Article 209 of the constitution.

He submitted that the president in the reference had used the word “learned” for assistant commissioner whereas he did not use the same word for the petitioner, Justice Qazi Faez Isa.

He contended that by sending the reference to SJC without going through it the president had violated his oath. He further submitted that the president had not applied judicial mind while sending the reference to the SJC.

Justice Umar Ata Bandial said the president had to apply his mind but not judicial.

“But the president did not even apply non-judicial mind,” Rizvi replied.

When Justice Faisal Arab asked whether both the president and prime minister act on the news of newspapers or TV channels, Rizvi said the president doesn’t read newspapers adding that recently the media when asked the president about the flour crisis in the country, he expressed ignorance in this regard.

'We have to set certain principles and if we did not set a criteria for dealing with important issues relating to fundamental rights of the citizens then no will be secure”, Rashid A Rizvi contended.

He submitted that not only Article 209 of the Constitution protects a judge but Articles 4, 9, 14, 25 and Article 10-A also protects the fundamental rights of people.

Justice Mansoor Ali Shah observed that the constitution guaranteed equal rights of citizens and the right to a fair trial.

Justice Umar Ata Bandial observed that the person who was calling the shots in this whole process was the prime minister, the cabinet, adding that they have to listen to the stance of the federation as to whether the president has to apply his independent mind or to act on the advice of prime minister.

Justice Umar Ata Bandial further said that in Justice Iftikhar Muhammad Chaudhry’s case certain things had been settled adding that the court will look into and search out as to why paragraph 64 of the judgment in Iftikhar Chaudhry’s case was ignored in the present case.

Meanwhile, the court adjourned the hearing for today (Tuesday) wherein Rashid A Rizvi will continue for half an hour and will be followed by another counsel for another petitioner.