Credibility of judiciary also rests on its accountability: SC

The Supreme Court on Wednesday stated the credibility of judiciary also rests on its accountability; therefore, there should also be some checks on it.

Justice Yahya Afridi addressing Munir A Malik, the counsel of Justice Qaiz Faez, stated, "From your arguments, it seems that the Supreme Court gives blanket immunity and complete protection to the judges of superior courts. Don't you think that there should be some checks on the judiciary, whom you describe as the mother of all fundamental rights." "The credibility of judiciary also rests on its accountability," he added.

A 10-member Full Court, headed by Justice Umar Ata Bandial, 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 & Association of Punjab, Sindh and Balochistan, and Abid Hassan Minto and IA Rehman have also challenged the Presidential Reference.

Munir Malik contended that the President, Prime Minister and Law Minister have exceeded their discretionary powers given in the Constitution. Justice Afridi questioned what steps he would suggest if they have exceeded their discretionary powers. What laws should be for future regarding the collection of evidence against the judges or mechanism adopted for maintaining their prestige, he further asked.

Malik contended that the violation of Section 116 of Income Tax Act does not constitute the misconduct. Justice Maqbool Baqir questioned whether Federal Board of Revenue has taken any step [regarding non-declaration of assets in income tax returns].

Malik prayed to the bench that the reference should be struck down as the President has not sent reference to the Supreme Judicial Council on the advice of the cabinet.

Earlier, Malik argued that the appointment and removal of judges is the executive function. He said that after the Supreme Court judgment in the Mustafa Impex case, the prime minister can't act solely but the cabinet acts collectively. Sending references and removal of judges are the executive functions of the federation, he added.

He submitted that there are many articles in the Constitution about the advice of the Prime Minister to the President. Justice Muneeb Akhtar remarked, "It has been our legislative history that there were tussles between the prime minister and the president for power."

He noted that 1973 Constitution in its pristine form advocates the parliamentary form of government which puts the prime minister in high position, but the 8th Amendment tilted the balance in favour of the president. However, the 18th Amendment tried to restore the parliamentary form of government and tried to maintain the balance between the prime minister and the cabinet.

Malik replied that after the 18th Amendment, there is high recognition that parliamentary model like that of the UK suits the country. He said Article 209 is unique where the president has to form his own opinion.

Justice Umar Ata Bandial asked Malik, "The most crucial and attractive part of your contentions is that the surveillance and investigations were done without authorization. You, therefore, have to explain the specific facts." Malik replied, "I will come to it later as I have been dealing with the matter of law that no misconduct was done [by my client]."

At the end of the hearing, Justice Bandial told the counsel that next week the bench is not available and, therefore, they would apprise him about the date for next hearing.