ISLAMABAD: The Supreme Court of Pakistan issued notices on Tuesday to the president and prime minister who are among the many respondents in a set of petitions filed against the presentation of a presidential reference against Judge Qazi Faez Isa.
Directed by Judge Umar Ata Bandial, the entire court that heard a set of petitions against the presentation of the presidential reference against Judge Isa observed during the brief procedure on Tuesday that the question of whether the president and prime minister could be involved as party in the challenge requests the reference against a judge in practice when both enjoyed constitutional immunity, needed to be examined.
Judge Bandial made these observations after consulting other judges, except Judge Syed Mansoor Ali Shah, who was unable to attend the hearing because he was abroad.
The court issued notices to the defendants in the petitions with the observation that the points highlighted in the petitions deserved consideration and that it was a good case to issue notices to the defendants.
The next hearing will be October 8.
Moved by Judge Isa, one of the petitioners, he has appointed as respondents President Arif Alvi, the federal government through the secretary of law, Prime Minister Imran Khan, Law Minister Muhammad Farogh Nasim, Attorney General (AG) , Supreme Judicial Council (SJC), SJC Secretary Arbab Muhammad Arif, President of the Asset Recovery Unit (ARU) Mirza Shahzad Akbar, Legal Expert of ARU Ziaul Mustafa Nasim, Pakistan Bar Council and Bar Association of the Court Suprema and others.
The court also sought the federal government's response to the points raised in the petitions before postponing further proceedings on October 8.
The court also noted that the common ground of attack of all the petitioners, including the judge in exercise against the presidential reference, was a bad faith of the facts and the law based on the principle established by the Supreme Court in the 2010 case of Iftikhar Muhammad Chaudhry.
According to article 248 of the Constitution, the president, governor, prime minister, federal ministers or ministers of state and head of government and provincial ministers shall not answer to any court for the exercise of powers and the performance of the functions of their respective positions or for any act performed or intended to be performed in the exercise of those powers and the performance of those functions.
Similarly, article 211 of the Constitution says that the proceedings before the Supreme Judicial Council (CSJ), its report to the president and the dismissal of a judge under article 209 (6) of the Constitution cannot be challenged in any court.
But lead attorney Rasheed A. Razvi, a representative of the Sindh High Court Bar Association before the Supreme Court, told Dawn that the case of former Supreme Court president Iftikhar Muhammad Chaudhry in 2010 had already answered the question by explaining that, although the court respects the expulsion clauses wherever it occurs in the Constitution or in any other law, it was for the same respect that this court (Supreme Court) would interpret such clauses as not extending immunity to acts that were coram non judice (illegal from the beginning) or that they were taken bad fide or those that were made without jurisdiction.
During Tuesday's hearing, Judge Bandial said the matter in question was a case of anxiety not only for the bar but also for the bank, but that the court will act in accordance with the law and the Constitution. "This is a very important case and we have no intention of delaying the matter," he said.
The court also asked Attorney General Anwar Mansoor to help him with the matter. But additional attorney general Chaudhry Aamir Rehman questioned whether the AG could provide assistance to the court when he himself had been sued in the petitions to defend the federal government's case before SJC.
Posted in Dawn, September 25, 2019