It was argued before the Supreme Court that directing Federal Investigation Agency (FIA), Federal Board of Revenue (FBR) and Inter-Services Intelligence (ISI) to investigate against a judge will open the floodgate of chaos in society.
Senator Raza Rabbani, representing the Sindh High Court Bar Association, contended that directing FIA, FBR and ISI to investigate against a judge is something, which is not tenable. "It will open the floodgate of chaos," he said. He said with great struggle Supreme Judicial Council (SJC) was revived and therefore, an inquiry and a recommendation to investigate against a judge should be made by the SJC.
Justice Umar Ata Bandial observed when the proceeding against the apex court judge (Justice Faez) was commenced and a notice was issued to him by the Council then whether the petition against the president will be maintainable.
Justice Bandial said the reference has been filed in the Council and whatever the allegations are in the complaint, the investigation has to be carried out on these. "If the Council has issued notice to the judge then should he not file a reply?" he questioned.
Rabbani said there is wisdom and logic that an inquiry or investigation will be conducted by the SJC. The reason for gradual extraction from the clutches of the executive is that the judiciary hears 80 % cases against the actions of the executive, adding if at any stretch it is conceived that judiciary is under the influence of executive then it will defeat the independence of the judiciary. He said therefore the SJC is not constituted under Article 175 of Constitution, while the appointments of superior courts' judges are made under the same article. He argued that Article 209 is to ensure the term of a judge.
Justice Bandial asked the counsel, "If your stance is that the SJC is the competent forum to conduct investigation against the judges then the petition is not maintainable as the reference is before the Council."
Rabbani argued that over the years, the ability of the president to act on his own whims and fancies has gradually been curtailed. Now many functions are done or executed in the name of the president, adding the discretionary power of the president has been limited.
Before starting his arguments, Rabbani said he had apprehensions whether a nine or ten-member bench will hear the petition. Justice Bandial, who is heading a 10-judge larger bench, replied, "Thank you."
After the retirement of Justice Asif Saeed Khan Khosa, it was expected that Justice Umar Ata Bandial will not head the larger bench as he has to sit in the SJC. He is at No. 3 on the list of Supreme Court judges. According to Article 209 of Constitution, the Council consists of Chief Justice of Pakistan, the two next most senior judges of Supreme Court and the two most senior chief justices of high courts.
The 10-judge bench 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, Abid Hassan Minto, and IA Rehman have also challenged the Presidential Reference against Justice Qazi Faez Isa.
Giving historical perspective of the Constitution regarding power of the president particularly with reference to Articles 209 and 48 of Constitution, Rabbani said the bars have not taken new position but their struggle for the independence of judiciary has been consistent. Due to their concerns and pressure, the discussion on Articles 209, 210 and 211 reopened and revisited. Even the Parliament was kept away so that there is no fetter on the independence of the judiciary.
Justice Bandial also noted that under the Judge Inquiry Rules 2005, the council can get further material to form its opinion to proceed against a judge.
The case was adjourned until today (Tuesday).
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