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Friday March 29, 2024

Justice Faez Isa case: Name the man who ‘advised’ reference, SC asks counsel

By Sohail Khan
June 05, 2020

Justice Faez Isa case: Name the man who ‘advised’ reference, SC asks counsel

ISLAMABAD: The federal government counsel Thursday faced a tough situation when the Supreme Court asked him as to who’d advised that a presidential reference be filed against Justice Qazi Faes Isa.

The apex court warned the federation to be ready for the consequences if it failed to establish its case against the 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 Isa for allegedly not disclosing his foreign properties in his wealth returns.

Justice Maqbool Baqir, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, and Justice Syed Mansoor Ali Shah were the other members of the bench.

Federation’s counsel Barrister Faroqh Naseem again faced a volley of questions about the filing of reference against the petitioner judge as well as the legal status of the Assets Recovery Unit (ARU).

“Who is the person who got the bright idea of advising the president to file a reference instead of approaching the Federal Investigation Agency (FIA) and Federal Board of Revenue (FBR),” Justice Muneeb Akhtar asked Farogh.

The judge observed that Mr. Dogar, the complainant, stood up at the Assets Recovery Unit. “The ARU pulled together FIA and FBR and investigated the matter itself,” Justice Muneeb observed and questioned as to how the ARU had concluded that money laundering had been committed.

The judge observed that the prime minister and president approved the reference based on false legal advice and this legal mistake could have consequences. Referring to the arguments of the counsel for the petitioner about the constitution of ARU as well as its TORs and various rules business, Justice Muneeb observed that in the presidential reference, the federal government had accused the family of petitioner judge of acquiring properties abroad in 2013 besides alleging violation of taxation and money laundering laws.

The judge, however, observed that there were no such laws in 2013, adding that when these properties were purchased, the Foreign Exchange Regulations Act came in 2015 and Money Laundering law came in 2016; therefore, he said the allegation of the federation was weightless.

“Who is the person that is advising the president to file a reference of misconduct against a judge instead of sending the matter to the FBR and FIA?” asked Justice Muneeb. “And if it is assumed that the opinion of the president was not in accordance with the law, then the instant presidential reference will be just a piece of paper,” the judge remarked.

Justice Maqbool Baqir asked the federal counsel to produce solid evidence that the petitioner judge had committed misconduct. The judge observed that removing a judge from his office and floating an idea for filing a reference for misconduct was a miss call.

“You have to establish before us that the petitioner judge was liable to disclose his foreign properties as well as prove that his spouse and children were dependent on him,” Justice Baqir told Farogh Naseem. Although a judge is not above the law, he has to be dealt with in accordance with the law”, Justice Baqir remarked.

Meanwhile, Justice Baqir twice repeated the statement of former SAPM Firdous Ashiq Awan. Without mentioning her name, the judge said the then SAPM had said that the judge had played a shot stepping out of the crease.

“It seems the instant reference was filed just on playing a shot steeping out of the crease”, Justice Baqir remarked.

Referring to the constitution of ARU as argued by Farogh Naseem that it had been parked under the Cabinet Division, Justice Mansoor Ali Shah observed that the appointment of special assistant to the prime minister (SAPM) was the discretion of the prime minister but appointing the head of an organization needed to follow a process inviting applications for filling the post.

Farogh replied that the Rules of Business had to be applied and not to disapply. He cited the judgment of Justice Mansoor Ali Shah delivered in 2013 in this regard. The counsel submitted that the ARU was endorsed by the prime minister and the cabinet.

He contended that the ARU was formed after suo motu proceedings of the apex court related to the retrieval of ill-gotten money in 2018. He said the court had held that it was a fundamental right of the people of Pakistan to know about the money looted and then sent abroad.

He said the court had asked the authorities to bring back the stolen money from abroad. Justice Mansoor Ali Shah reminded the federation counsel that his question was yet to be answered as to how many cases had so far been proceeded by the ARU against the public office holders.

Farogh replied that he would answer it. Justice Bandial observed that Article 209 of the Constitution was not only an article, but it also protected the judiciary.

The judge said it was responsibility of the president to form an independent opinion and asked the federation counsel to provide him with any document or information that could establish that the petitioner judge had committed misconduct. Meanwhile, the court adjourned the hearing until next Monday.