Reference against judge: President ought to have formed his own opinion: counsel

The counsel for Justice Qazi Faez Isa has said that President Dr Arif Alvi should have formed his own independent opinion before sending reference to Supreme Judicial Council (SJC) in order to insulate the judiciary from the executive.

A 10-member Full Court, headed by Justice Umar Ata Bandial, on Tuesday heard identical petitions challenging the 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 and association of Punjab, Sindh and Balochistan, and Abid Hassan Minto and IA Rehman have also challenged the Presidential Reference.

Justice Mansoor Ali Shah inquired whether the President on his own motion can send the reference to the Council, and asked if he does, then his personal hatred would not matter. Munir A Malik, representing Justice Faez, argued that the President must first receive complaint from some sources either public source or private person, and send the reference after forming his own opinion.

He said in the case of public source, particularly department like Federal Board of Revenue (FBR), if it finds irregularities in the tax-related matter of a judge of superior court then the authority refers the case to the competent forum for decision. After that the department could send the matter to the President for forming his opinion.

Malik said in the first instance to establish breach of special law, the judge should be provided an opportunity before the relevant forum; otherwise he would be denied the right to defend himself and would be proceeded by the SJC.

During the course of proceedings, Justice Maqbool Bar again questioned which forum is required to announce declaration about the petitioner's (Justice Qazi's) properties. Malik replied every breach of law is not a violation of judges' Code of Conduct. "Power to send reference is unique and the President should use discretion in filing references." Even if the President had decided to send the matter, it should have been sent to FBR and not the SJC.

Justice Umar Ata Bandial observed that Article 209 is not only concerned with the judges of superior courts, but the proceedings against Ombudsmen, Auditor General of Pakistan, members of Election Commission of Pakistan and many officers are also held under the same Article. "Therefore we should not set high standard for proceeding against them of misconduct."

Malik contended that under the Constitution's scheme there is trichotomy of power. It is stressed upon the separation and independence of judiciary as it is the mother for protection of all fundamental rights.

Malik urged the Supreme Court to lay down parameters or guidelines about the privacy of judges. However, he said: "Is it not proper that SC should give guidelines what the executive [government] should do and what it should not do, so that judges' privacy should not be violated and their families should not be snooped upon?"

The counsel questioned the role of Minister for Law and Justice Dr Farogh Naseem in filing the Presidential Reference against Justice Isa. He submitted that the law minister bypassed the cabinet and sent the summary directly to the Prime Minister.

Even after filing of Presidential Reference, the minister directed the Assets Recovery Unit (ARU) to inquire about Justice Isa and his family. He is the representative of MQM, which is aggrieved by the Faizabad sit-in case judgment, in the cabinet. The law minister also issued a press statement about the filing of the Presidential Reference.

Malik said the Presidential Reference was filed without jurisdiction and constitutional authority. The President acted otherwise as it was required in Article-209 of the Constitution. The President enjoys distinctive position as he is and symbol of unity of federation above power politics. Justice Muneeb Akhtar, however, disagreed with Malik's arguments and noted that after the passage of the 18th constitutional amendment, the president's discretion has been wiped out. The case was adjourned until today (Wednesday).