Reference against judge: SC asks whether inquiry could be held by forum other than forum prescribed in law

The Supreme Court Monday questioned whether an inquiry into the Presidential Reference could be held by a forum other than the forum prescribed in the law.

Justice Maqbool Baqir asked Justice Qazi Faez Isa's counsel whether the law minister could hold an inquiry through a forum other than the forum prescribed in the law. Justice Mansoor Ali Shah questioned how the evidence was collected and under what law the evidence be collected by the agencies mysteriously. He asked under which law this material was collected from the UK.

A 10-member full court headed by Justice Umar Ata Bandial heard identical petitions challenging a presidential reference against Justice Qazi Faez for allegedly not disclosing his foreign properties in wealth statements. Besides the apex court judge, Pakistan Bar Council, Supreme Court Bar Association, bar councils & associations of Punjab, Sindh and Balochistan, and Abid Hassan Minto and IA Rehman have also challenged the Presidential Reference.

Munir A Malik argued that according to the reference, the President did not form his independent opinion before filing the reference in Supreme Judicial Council, adding he acted on the advice of Prime Minister [Imran Khan] and admittedly the matter was not placed before the cabinet.

The counsel maintained that on the complaint of a private person, Asset Recovery Unit (ARU) carried out investigation and made it part of the reference, which is illegal. Upon that Justice Umar Ata Bandial stated that as far as legality of ARU is concerned, it came into existence as a result of the Supreme Court 2018 judgment.

On the issue of immunity to the President, Prime Minister the federal minister under Article 248 of Constitution, Munir contended that the protection is granted to the actions of functionaries if those are taken within the four corners of the Constitution.

He said in the Chaudhry Zahoor Elahi vs Bhutto case, the apex court held that immunity can't be granted to the President, PM and the ministers' illegal and unconstitutional actions, adding that there is no immunity if the actions of state and government functionaries suffered from mala fide. In the Chaudhry Muhammad Iftikhar (ex-CJP) case, General Pervez Musharraf (retd) was impleaded as a party as no immunity could be extended to his illegal and unconstitutional acts.

Justice Muneeb Akhtar observed that in the Ch Iftikhar case, there are many specific and direct allegations of serious nature. He questioned, "Whether there are specific, direct and personal allegations in your petition against the functionaries that they have acted with mala fide. The allegations in your petition are of general nature, which are of surveillance of the petitioner and his family."

Malik argued that the immunity under Article 248 is limited and where mala fide is alleged in the law then it becomes mandatory for the court to implead the person in order to provide him an opportunity to controvert the allegations. He said the President acted unconstitutionally as he acted on the advice of the Premier and not the cabinet. It was the President who had to apply his independent mind before filing a reference; so this is the failure on his part that he did not apply his mind.

Regarding the maintainability of the petition, Malik contended that Supreme Judicial Council (SJC) is not a court of law, and it is only a domestic fact-finding forum for inquiring the allegations in the reference. He further said that like Supreme Court the SJC can't enunciate law or can't give any ruling on the constitutional question whether the President applied his own mind on reference or it was sent to him on the advice of the PM.

The counsel pleaded that after the SJC decision, a judge of the Supreme Court against whom a reference is filed does not have remedy. Justice Bandial questioned it means the petition under 184(3) is an appeal against the Council. Malik contended that it is about maintainability whether there is violation of fundamental rights of the petitioner. He said the proceedings before SJC are not open, while proceedings before Supreme Court are open.

Malik argued that the Council traveled beyond its jurisdiction. These are the reasons that this court (SC) should hear the matter. The case was adjourned until today (Tuesday).