President Arif Alvi has violated his oath of the office by filing reference against Justice Qazi Faez without applying independent judicial mind, argued Rasheed A Rizvi on Monday. He was representing the Sindh High Court Bar Association (SHCBA), Karachi District Bar and Pakistan Federal Union of Journalist (PFUJ). Rizvi contended that the President has taken oath to defend, protect and preserve the Constitution.
The SHCBA lawyer said, "Unfortunately our President does not read newspapers." When some journalist questioned about the price of wheat, he [President] replied that he does not know. Rizvi said when the President does not know wheat price then how come that man [President] decide the fate of a Supreme Court judge.
He contended that the President has not even tried to read the material sent to him for filing reference against a judge of the apex court.
The bench questioned when the President had received the information and by whom. Rizvi said the reliance in the reference is on the Shaukat Ali case and not the apex court verdict in the ex-CJP Iftikhar Muhammad Chaudhry case.
Requesting the bench to make rules regarding investigation, he said unless the apex court lays down the strict rules regarding conducting investigation, no one would be safe. He hoped that change would come in the Council due to Justice Bandial, which was not in the past.
Rizvi said the President has not applied his independent mind for filing reference against Justice Qazi Faez Isa. However, the President has said that he sent the reference to the Council on the advice of the Prime Minister. The Law Ministry submitted the summary to the Prime Minister for filing reference, which the PM advised the President.
Justice Bandial asked the counsel, "Are you saying that the government, which is the major litigant before the apex court, forwarded the reference to the President against the judge, who had signed and forwarded it to the SJC without reading?"
The head of the bench said they have to resolve the issue whether the President has to act under Article 48 of Constitution on the advice of the Prime Minister or Cabinet without applying mind or has to act in accordance with Article 209 of Constitution to apply independent mind before forming opinion for sending the reference to the Council. He further said if the President has to act on the advice of the Cabinet then they would see who is 'calling the shots'.
Objecting to not writing the word 'learned' before the judge in the reference, Rasheed Rizvi said if the assistant commissioner is addressed as 'learned assistant commissioner', while before the judge the word 'learned' is not mentioned. This speaks about the mind of the President, he added.
He told the apex court that any material collected in violation of law should be thrown away by this court and the bench should declare it malafide and illegal and coram non judice.
A 10-judge bench, headed by Justice Umar Ata Bandial, is hearing 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.
Rizvi said when the law authorized to do thing in a manner then that should be done in that manner. The investigation should have been conducted by Supreme Judicial Council (SJC) and not the Asset Recovery Unit (ARU).
Justice Faisal Arab questioned, "Suppose there is news in the newspaper or the TV channel against a judge of superior court then what would happen?" Rizvi said the newspaper or the channel would be required to substantiate the allegation.