Justice Qazi Faez Isa’s counsel Munir A Malik Monday urged the apex court to dismiss the presidential reference against the Supreme Court judge over ‘violations of the constitution in filing of the reference’.
Arguing the case before the full bench of the apex court led by Justice Umar Ata Bandial on Monday, Malik said that President Dr Arif Alvi was bound by the constitution to ‘apply his mind to the reference’ instead of simply acting on the advice of Prime Minister Imran Khan. He added that the president had himself ‘confessed’ to acting on the advice of the prime minister, which constitutes to him taking an ‘unconstitutional’ step.
The counsel contended that the reference is based on ‘mala fide intentions’, therefore the court must make President Alvi, Prime Minister Imran Khan and Law Minister Farogh Naseem part of the proceedings. “While Article 248 makes it clear that prime minister and ministers cannot be made answerable to the court, they are bound to act in accordance with the constitution and there cannot be impunity for anyone who breaches the constitution,” he said, and once again reiterated that the reference has been filed without prior approval of the federal cabinet.
Justice Faisal Arab asked him if it is mentioned in the reference that the president has not ‘applied his mind’ to the reference. Justice Manzoor Ali Shah also asked whether the phrase ‘applying his mind’ means that the president has to supervise the collection of all evidence in the reference. He further asked about the legal merits of the collection of material against the SC judge. “If the material was collected illegally, then it means the judge’s privacy guaranteed under Article 14 has been violated,” he said.
Malik said the president should have ‘applied his mind’ to know how the material was collected. He also said that the president’s act of acting only on the advice of the prime minister in this matter is unconstitutional and constitutes ‘mala fide intent’.
Justice Isa’s counsel, while responding to Justice Bandial’s observation regarding the apex court’s jurisdiction under Article 184 (3), said that the Supreme Judicial Council (SJC) exceeded its jurisdiction by issuing show-cause notices on points which were not raised in the reference. The latter said that remedy under Article 184 (3) is 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 is also extraordinary as this is only the second time in Pakistan’s history that a full bench is hearing the case of an SC judge.
Justice Muneeb Akhtar, while comparing the Iftikhar Chaudhry case with Justice Isa’s, 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,” he said. Justice Maqbool Baqar asked whether the issuance of a show-cause notice by the SJC bars the apex court from entertaining the judge’s petition against the council’s proceedings. Malik, while referring to the Iftikhar Chaudhry judgement, contended that there is no constitutional bar under Article 211 if the reference is based on mala fide, 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 case was then adjourned till Tuesday (today).
