Reference against judge: SC describes notification for ARU as 'eye-opener'

The Supreme Court on Wednesday observed that notification for the establishment of Asset Recovery Unit (ARU), which contains its terms of reference, is an eye-opener.

Justice Umar Ata Bandial, who heads a 10-judge bench which is hearding the petitions against the Presidential Reference, thanked Senator Raza Rabbani on conclusion of his arguments, and said that "submission about ARU notification and its ToRs is an eye-opener."

Rabbani, representing Sindh Bar Council, argued that the entire exercise in terms of investigation by ARU and the Prime Minister's advice to the President to send reference against Justice Qazi Faez Isa is non-est, unconstitutional and without jurisdiction and, therefore, it should be quashed.

Same arguments were made by Rasheed A Rizvi, who appeared on behalf of SHCBA and Karachi Bar Association. Rizvi submitted that the ARU has no legal status; therefore, any investigation/inquiry conducted and any material collected for filing reference against the judge is illegal, void ab initio and without jurisdiction.

The bench heard identical petitions challenging the Presidential Reference against Justice Qazi Faez Isa 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.

Rabbani said if the ARU has carried out full-fledged probe then what the Supreme Judicial Council (SJC) would do. He argued that the ARU was not set up for the collection of material. In its terms, it is mentioned that for procuring evidence on any subject it can set into motion any intelligence or law enforcement agency, FBR or any department.

The carte blanche power to "plunder" the privacy and secrecy of citizens, including a judge, has been given to ARU. He said such power to executive would badly affect the independence of judiciary.

Rabbani put a question: "Can the ARU ToRs overwrite the provisions of Article 209 of Constitution which ensure the tenure of judges?"

Justice Bandial asked the counsel, "You mean to say that it was fishy inquiry rather witch-hunt [against Justice Faez]."

The senator said the letter written by chairman ARU to Farogh Naseem mentioned that the complainant didn't have any evidence. Therefore the Unit conducted probe and supplemented it with material.

The chairman ARU carried out probe on his own on the advice of Minister of Law [Farogh Naseem]. Justice Mansoor questioned whether the ordinary citizens have access to ARU. The counsel remarked that it depends on the class of citizen. The ARU conducted an in-depth exercise and obtained the certified copy of Justice Faez Isa's properties in the UK from London land registry department.

Earlier, Rabbani told the bench that present ruling coalition comprising Pakistan Tehreek-e-Insaf (PTI) and Muttahida Qaumi Movement (MQM), has sent the reference against Justice Qazi Faez Isa, a judge of apex court, and Justice KK Agha, a judge of Sindh High Court (SHC), and it has a background. "Both the PTI and MQM are affected by the Faizabad sit-in judgment rendered by Justice Isa," he added.

He submitted that reference against Justice KK Agha was the malice that stemmed from the Sindh High Court (SHC) judgment on 12th May 2007 incident, which was announced on 11-09-2018. Justice Bandial stated these are just conjectures and surmises as no circumstantial evidence is available. He asked the counsel, "You named a political party without specific material, which is unfair to accuse someone of malice." He said they are hearing a petition against the reference against the judge of this court.

Rabbani replied there is substance little more than the circumstantial evidence. He said many times the SHC constituted bench to hear the case, but its composition was frequently changed. Whenever the matter was fixed before the SHC, the court premise was thronged by workers of a specific political party; therefore, the court could not assemble or sit due to the pressure of that political party. He said in the judgment names of political party members are mentioned who were involved in the 12th May incident. He apprised that Justice Isa, before he was nominated as judge of Balochistan High Court, was the amicus curiae (friend of the court) in that case.

Rasheed Rizvi submitted that no one else except the President or SJC can order investigation against a judge. He said that ARU is not part of any division or ministry, therefore the investigation carried by it against the properties of Justice Isa is unlawful.

He said the President or Prime Minister has to act strictly in accordance with the Constitution. The case was adjourned until 27th January.