Counsel describes reference against judge as 'colorable exercise of power'

Munir A Malik, the counsel for Justice Qazi Faez Isa has argued if the licence is given to the executive for the covert surveillance, breach of confidentiality and investigation without lawful authority to collect material against judges then it will destroy the sanctity of the institution (apex court).

He argued that the reference is colorable exercise of power, as neither the law minister nor the chairman of Asset Recovery Unit (ARU) has power under Article 209 of Constitution to probe against the Supreme Court judge.

Malik said the question before the Supreme Court is whether the illegality be condoned and the material collected through illegal manner be considered. "All the petitioner (Justice Qazi) wants is that all the state functionaries/agencies should not act illegally." Those who acted in violation of the law should not escape the punishment, he demanded.

"Any leniency and condonation would be tantamount to giving executive license to intimate its citizens." If the executive has source of information then it must be obtained through lawful means, otherwise constitutional tenets would subvert the independence of judiciary.

A 10-member Full Court, headed by Justice Umar Ata Bandial, heard Justice Qazi Faez Isa's and other identical petitions challenging the Presidential Reference against the two judges of the superior courts for allegedly not disclosing their foreign properties in their wealth statements.

Malik contended that neither is the allegation against the petitioner that he was a 'Benami' owner of the properties in United Kingdom, nor that the sources of funds for the properties were obtained through corrupt practice or unfair means, misuse of his office or private gains. There is also no allegation of money laundering against the petitioner.

He said the case is rooted under Section 116 of Income Tax Ordinance for not declaring the properties in the name of spouse in the Wealth Returns. However, neither the first nor the third part of the Section 116 was activated so far by the relevant authorities. The SJC could not make the acclamation that the petitioner has committed breach of Section 116 of ITO.

Malik submitted that the facts of the instant case are that the review petitions were filed by Pakistan Tehreek-e-Insaf (PTI) and Muttahida Qaumi Movement (MQM) in the Faizabad dharna (sit-in) case. The PTI's earlier review, which was later on withdrawn, speaks the mind of the political party that the Faizabad dharna judgment was enough to remove the judge (Justice Qazi).

The deliberate leak of the contents of the reference and the rejoinder of the Attorney General for Pakistan before the Supreme Judicial Council (SJC) demonstrate the collateral purpose.

He said that the President of Pakistan under Article 209 of Constitution had to examine the misconduct and then refer the matter to the SJC to inquire.

The President should have sent the reference to the Council after applying his mind. But it was not done in this case; therefore, the reference is without jurisdiction.

The flats were purchased in years 2004 and 2013 and on the basis of it to say as the judge has not declared them in his wealth return is not the co-incident.

Deliberately the contents of the reference were leaked to media. It was a calculated effort to destroy the reputation of the petitioner.

He said Attorney General Anwar Mansoor in his rejoined to the preliminary reply of Justice Qazi Faez stated the respondent (Justice Qazi) craved from self-praise and cheap popularity. He has surreptitiously leaked the information to media. The case was adjourned until Tuesday (Dec 17).