ISLAMABAD: There are allegations that the Supreme Judicial Council (SJC) harbours a bias towards Justice Qazi Faez Isa as the forum exceeded its jurisdiction by issuing show-cause notices on points which were not raised in the presidential reference against the apex court judge.
This was stated by Justice Isa’s attorney, Muneer A Malik, during Monday’s Supreme Court hearing as the 10-judge full-court, led by Justice Umar Ata Bandial, resumed hearing a set of petitions challenging the presidential reference against Justice Isa.
Malik was responding to Justice Bandial’s observation regarding the apex court’s jurisdiction under Article 184 (3).
The latter said that remedy under Article 184 (3) was not open to everyone as, after the SC judgment in the Shaukat Aziz Siddiqui case, the affected judge can now make a request to the SJC for a public hearing.
However, Malik said the situation in this particular case was also extraordinary as this was only the second time in Pakistan’s history that a full bench was hearing the case of an SC judge.
Regarding presidential immunity under Article 248, Malik said the same cannot apply to presidential acts which are without jurisdiction, malafide, and coram non judice.
Justice Muneeb Akhtar, while comparing the Iftikhar Muhammad Chaudhry case with Justice Isa’s case, noted that in the former there were specific, direct and serious allegations of mala fide against then-president Pervez Musharraf.
In Justice Isa’s case, he said, there are general allegations against the referring authority. “You have to give specific and direct incidents which could establish mala fide against executive authorities,” said the judge.
Malik stated that he is attributing mala fide in law towards the president as he acted unconstitutionally on the advice of the prime minister and sent a reference against the SC judge.
Justice Mansoor Ali Shah questioned under what law was material collected to file a reference against the apex court judge.
“If the material was collected illegally, then it means the judge’s privacy guaranteed under Article 14 has been violated.”
Justice Maqbool Baqar asked whether the issuance of a show-cause notice by the SJC bars the SC from entertaining the judge’s petition against the council’s proceedings.
Malik, while referring to the Iftikhar Muhammad Chaudhry judgement, contended that there was no constitutional bar under Article 211 if the reference is based on malafide, illegal and non coram judice.
Justifying Justice Isa’s decision to approach the SC, his attorney stated the SJC cannot strike down the presidential reference but the apex court can do the same in view of the principal laid down in the Iftikhar Chaudhry case.
The hearing was adjourned till Tuesday.