ISLAMABAD: The top court has issued notices to all respondents including President Dr Arif Alvi and Prime Minister Imran Khan over petitions filed by the Supreme Court judge Qazi Faez Isa and others against a presidential reference seeking Justice Isa’s removal on account of alleged misconduct.
Minister for Law and Justice Farogh Naseem, Attorney General for Pakistan (AGP) Anwar Mansoor Khan, Assets Recovery Unit Chairman Shahzad Akbar and the Supreme Judicial Council (SJC) – which is hearing the reference – are also among the 11 respondents.
The presidential reference, filed in May this year, alleged that Justice Isa committed misconduct by not disclosing his family members’ asset. The SJC, headed by Chief Justice Asif Saeed Khosa, later started proceedings on the reference. Justice Isa and a number of other petitioners later challenged this reference in the apex court whose nine-judge full court took up the case on Tuesday.
“We consider that the points raised in these petitions deserve consideration and accordingly we issue a notice to the respondents. Learned additional attorney general seeks a week’s time to file his concise statement,” read an order issued by the full court led by Justice Umar Ata Bandial after a brief hearing.
There are ten petitions on the same subject filed by different bar associations, bar councils and senior members of the bar – including Abid Hassan Minto and Hafiz Abdul Rehman Ansari.
The court in its order noted that the presidential reference against Justice Isa is ‘assailed’ primarily on the ground of mala fide in fact and mala fide in law based upon the principles enunciated in the judgment of this court in the Chief Justice of Pakistan Iftikhar Chaudhry vs President of Pakistan case.
The most significant point in the order is that the court emphasised the interpretation of Articles 211 and 248 of the Constitution. The court said questions raised for consideration by this court are essential of a legal nature, including the bar of jurisdiction imposed by Article 211 of the Constitution.
“The proceedings before the SJC, its report to the president and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any court,” says Article 211.
The court also noted that both the president and the prime minister have been arrayed as respondents in some of these petitions.
“Since they have immunity under Article 248 of the Constitution, therefore, it shall be examined during the hearings whether they can be retained as parties to these proceedings.”
Lawyers who are supporting Justice Isa say the issues related to Articles 211 as well as Article 248 have already been settled in the Iftikhar Chaudhry case as there is no immunity to the top government functionaries as well as a bar of jurisdiction.
However, a senior government official expressed concern over jurisprudence that evolved through the Iftikhar Chaudhry case judgment. He said the incumbent full-court may differ with earlier full-court judgment about the interpretation of both constitutional provisions.
The official said the government will raise these issues related to the bar of jurisdiction and immunity.
The court has also issued a notice to the AGP under Order XXVII-A CPC as the questions raised in these petitions involve interpretation of the Constitution.
During the hearing, Justice Bandial said they are aware that Justice Isa’s counsel Muneer A Malik is unwell. Likewise, he said, one member of the bench (Justice Mansoor Ali Shah) also is not available.
“This case is a cause of anxiety not only for the bar but also for the bench as well. We have to act in accordance with the law and the Constitution. It is a very important case and we have no intention to delay it,” he said.
The court noted that 70 per cent material in all petitions is the same and the petitioners relied on the Iftikhar Chaudhry case. The hearing of the case was later adjourned till October 8.
Earlier, Chief Justice of Pakistan (CJP) Asif Saeed Khosa formed a 10-judge full-court led by Justice Bandial to hear the matter. The bench includes Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, and Justice Qazi Muhammad Amin Ahmad.
It will be interesting to see whether Justice Amin-Ud-Din Khan is also made part of the full-court after his elevation. In August, the Supreme Court Bar Association (SCBA) challenged the reference – filed against Justice Isa in May this year for allegedly not disclosing his family members’ assets – contending that the reference was filed due to the judge’s verdict in the Faizabad sit-in case.
The constitutional petition was filed by SCBA through its president, Amanullah Karani, and the respondents included the SJC, the president of Pakistan (through the principal secretary to the president), and the federation of Pakistan (through the secretary of law and justice division).
The petitioner contended that the references against Justice Isa “while cloaked in pious proclamations of accountability – are actually rooted in mala fides of fact and law.”