The Supreme Court will provide certain principles regarding initiation of investigation against a judge of superior court under Article 209 of Constitution, said Justice Umar Ata Bandial.

Justice Bandial, who heads a 10-judge bench which is hearing Justice Qazi Faez Isa's petition against the President Reference, said on Tuesday: "We have to provide certain principles as the debate has been going on for the last four months who should conduct investigation." He said in the ex-CJP Iftikhar Muhammad Chaudhary case it was malice of fact. The apex court decided the matter without touching the merit of the case.

Justice Bandial said at some point there should be authorization by someone to open the investigation. He questioned if the half-bake information should be placed before the President, and what the President has to do. He said Article 209 has to be made workable so that when such kind of case comes before the Supreme Judicial Council (SJC) then it should know what should be done by the executive. "We need to settle this point," he added.

Senator Raza Rabbani, representing Sindh High Court Bar Association (SHCBA), argued that the Prime Minister on his own cannot direct any department to collect information against a judge of superior courts.

He submitted that under Article 209 of Constitution, the President can only direct SJC to inquire against a judge. Justice Maqbool Baqir said, "You mean to say that in this case neither the President nor the Prime Minister ordered the inquiry." He further asked Rabbani, "you are saying that the government machinery can't be used to build up a case against a judge."

The SHCBA counsel contended if the President, Prime Minister or the executive had ordered an inquiry then it is unconstitutional. He pleaded that it is the Supreme Court and not SJC to throw out the reference as it is illegal and unconstitutional.

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.

Raza Rabbani argued that the question before the Court is that the reference filed by the President is non-est and mala fide in law and facts. He said the Supreme Court and not Supreme Judicial Council is competent to declare that the filing of reference is unconstitutional and illegal. The court has to see whether the reference is filed in accordance with the Constitution, adding if the ground is unconstitutional then the entire structure built on it will fall.

Quoting the recent judgment of Lahore High Court [on constitution of Special Court], Raza Rabbani said he regrets to cite judgment but the LHC has struck down the entire proceedings of the Special Court against the usurper of Constitution only on the ground that it was not properly constituted.

He put a question before the bench whether the government of the day can start snooping around to get information from one department to another. The departments snooping around for the information against the superior court judge is not permissible, he said. The investigation against Justice Qazi Faez by FIA, FBR and Asset Recovery Unit (ARU) is illegal.

Rabbani asked if it was necessary to trigger inquiry by the department on Dogar's complaint. The executive had to see whether Dogar is a genuine man and his one-page complaint should have come to the Council, he added.

He said the executive does not have power to verify the complaint against the judges otherwise "a parallel NAB is taking place". He said the question is not about providing details of Justice Qazi Faez's properties, but a full-fledged inquiry was conducted by the executive, asking what the SJC would do after this.

He said the Article 175 is about judges' appointment, but Article 209 ensures the tenure of judges. He argued under Article 175 Judicial Commission of Pakistan is formed to recommend the names, whose approval is given by the Parliamentary Committee on Judges Appointment and the Prime Minister's role is only to forward the names to President for notification.

He said when there is no role of the PM in the appointment of judges then how come he order to initiate inquiry for ousting a judge. Taking exception to this, Justice Bandial remarked, "You are saying that Prime Minister is nothing," adding that he is the leader of the house and the chief executive of the government.

Raza Rabbani said that, therefore, he earlier argued for jealously guarding the rights of Parliament and the executive.

But if both the organs do not act in accordance with the law then it will open the floodgate of chaos.