In an unprecedented move, the Supreme Court has ruled that Justice Qazi Faez Isa should not hear cases involving Prime Minister Imran Khan.
“The Hon Chief Justice of Pakistan, therefore, observed that in these circumstances it would not be proper for the Hon Judge to hear the matter considering that he had already filed a petition against the Prime Minister of Pakistan, in his personal capacity. Therefore, to uphold the principle of un-biasness and impartiality, it would be in the interest of justice that the Hon Judge should not hear matters involving the Prime Minister of Pakistan,” says a five-page written order of Chief Justice Gulzar Ahmed.
A five-judge larger bench of the Supreme Court led by the CJP and comprising Justice Mushir Alam, Justice Umar Ata Bandial, Justice Qazi Faez Isa and Justice Ijaz ul Ahsan on Thursday disposed of a case related to news report citing him as announcing allocation of Rs500 million to all lawmakers ahead of the Senate polls.
The written order states that one of the bench member, Justice Qazi Faez Isa, sought to place on record photocopies of certain documents statedly received by him from some anonymous source through a WhatsApp message.
It further states that the copies of such documents were handed over by the judge to other members of the bench. A copy was also handed over to Attorney General for Pakistan Khalid Jawed Khan. Justice Isa also stated that he was unsure if the documents were genuine.
The AGP submitted that since the authenticity of the documents was questionable, these might not be taken on record. He further submitted that in any event, the judge would become a complainant in the matter and in that capacity it would not be appropriate for the judge to hear the matter.
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After the issuance of the order, a debate has started whether Justice Isa is eligible to hear cases related to the government affairs.
A 12-judge full court of the Supreme Court had held in 1989 that “one set of judges of a constituted Bench of Supreme Court, cannot issue a direction to the other set of Judges or any of the Judges of the Bench, not to associate themselves or himself in hearing of a matter”.
Likewise, the Supreme Court in another order ruled that only judge himself can decide about allegations of biasness against him.
However, former attorney general Anwar Mansoor Khan in a TV talk show stated that in view of the order, Justice Isa could not hear cases related to the federal government, adding that this order should have been passed earlier.
However, one section of lawyers considers this order as a big relief for the prime minister.
Previously, the Pakistan People Party (PPP) had raised objections of biasness against then chief justice Iftikhar Muhammad Chaudhry. Likewise, allegation of bias was levelled by the Pakistan Muslim League Nawaz (PML-N) against then chief justice Mian Saqib Nisar. However, both parties could not succeed in recusing them from hearing cases related to them.
On the last date of hearing on Wednesday, when the chief justice was dictating order, Justice Isa requested him to add that the finance ministry’s report should be duly signed by prime minister. Upon this, the same order was passed.
However, when the bench resumed the hearing on Thursday, Justice Bandial asked Attorney General Khan whether the prime minister was personally answerable on such matters. Referring to Article 248 of Constitution, he asked as to why the attorney general did not raise objection in this regard.
The apex court judge wondered as to how the court could go against the prime minister if he was not personally responsible, adding that according to the rules of business, the secretary was the government, and not the prime minister.
“Do not cause us, which is illegal and unconstitutional,” Justice Bandial further observed. Upon this, the attorney general agreed and stated that the question related to immunity under Article 248 could be raised at any time.
Justice Isa, however, responded that it is unclear at this time if there is any constitutional cover to the prime minister on his political actions. However, in the past courts have been known to summon the prime ministers, he added.
“We are not the enemy, we are the protectors of the people’s money and the Constitution,” he stated.
About measures to curb corruption in the country, Justice Isa said: “Is it not the responsibility of the Election Commission of Pakistan (ECP) to take action against corrupt practices?” He also stated that the prime minister had criticised the five-year term for the government as being too short.
Earlier, the bench disposed of the development fund case after finance ministry’s report, signed by the prime minister as well.
“In view of the above position on record, it appears that the queries raised by this court in the order dated 03.02.2021 have been responded/addressed by all the respective Governments and thus, we see no reason to further proceed with the matter. Accordingly, the Civil Miscellaneous Application No.490 of 2021 in Constitution Petition No.20 of 2013 is disposed of,” says the order.
The prime minister in the report stated that no public funds are being distributed to the parliamentarians by the federal government and any report to the contrary in the media is incorrect. “No money will be handed over to the legislatures to carry out the development schemes,” says the statement.
The report further states that the finance division has not allocated or handed over money to any legislature or any person nor has it intended to do so. There is no such provision in the public finance management system, the undertaking added.
“The finance division has not received any direction or request from any quarter to allocate these funds or any other funds to any specific project or any project identified by a legislature or any other person,” it further added.
The report says that there is no discretionary allocation at the disposal of the prime minister, federal minister, parliamentarian, or any other person, under the existing budgetary system. As such, expenditures incurred are never person-specific. “Rather they are Demand-specific, duly approved by the National Assembly.”
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It further states that none of the development funds shall be handed over to any of the federal ministers, parliamentarians or any other person under the existing budget and that whatever budgetary provisions have been made in the annual budget, the same will be utilised in the manner, as provided in the Constitution and other applicable laws and regulations.
The reports of the government of the Punjab and, also the government of Sindh, in specific terms, have responded that no development fund is going to be given to any of the MPAs/ministers/notables of their respective provinces and that the development funds shall be used and spent as per the constitutional mandate and the applicable rules framed by the respective governments for utilisation of the development funds provided in the annual budget
The apex court, the other day, had sought written undertaking from the federal government, signed by the prime minister, that the development funds would not be given to any lawmaker in violation of the Constitution.
The attorney general had submitted a report signed by the Principal Secretary to the prime minister Azam Khan that no fund would be given to any lawmaker in violation of the SC judgment.
This came after a two-judge bench, comprising Justice Isa and Justice Baqar, took notice of a news report and an editorial published respectively on January 28 and February 1 in a newspaper about the development grants.
The court directed its office to issue notices to the federal government through the cabinet secretary or the principal secretary to the prime minister, secretary of the finance ministry and all provincial governments through their respective chief secretaries and finance secretaries.
The bench had asked them to submit their respective responses and replies with regards to the prime minister alleged announcement. The court also issued notices to the AGP Khalid Javed Khan and all provincial advocates general.
The written order is unsigned. So, it is clear that whether Justice Isa will agree with order or not.
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