SC questions ARU’s powers to collect evidence against judge – Newspaper

ISLAMABAD: Judge Maqbool Baqar of the Supreme Court on Monday asked Judge Qazi Faez Isa's lawyer to face a presidential reference to elucidate the authority of the executive to conduct an investigation against a judge of the superior court in a forum that It has not been prescribed in the law.

Judge Syed Mansoor Ali Shah also asked Muneer A. Malik to explain under what law the Asset Recovery Unit (ARU) had compiled the material that will be used in the reference against Judge Isa, wondering if a person was entitled to gather evidence against the judge and if the judge also enjoyed the right to privacy and dignity guaranteed by article 14 of the Constitution.

Judge Shah also asked the lawyer if the Supreme Judicial Council (SJC), while being prosecuted against a judge, could also be allowed to act against the president's conduct by forwarding the reference to the council when lifting immunity under Article 248 of the Constitution.

However, Judge Umar Ata Bandial, who presided over a full court of 10 judges, recalled that the ARU was created in the context of the 2018 Supreme Court order in the case of foreign accounts.

The court was listening to a series of petitions challenging the presentation of the presidential reference against Judge Isa of the Supreme Court.

Attorney Muneer Malik will answer the questions when the court takes the matter on Tuesday. However, he referred to article 248 of the Constitution that grants immunity to the president, prime minister, governors, chief ministers and ministers. He argued that the drafters of the Constitution were clear in his mind that this clause should provide protection to the actions if it was taken by the holders of constitutional positions within the four corners of the Constitution.

The same immunity was not intended to protect the actions of people as a result of illegal actions, coram non judice or bad fide, the lawyer emphasized. He cited the case of Zahoor Ellahi against Zulfikar Ali Bhutto of 1975 in which it was held that immunity could not be extended to any illegal or unconstitutional act.

However, Judge Muneeb Akhtar, a member of the bank, recalled that in the Iftikhar Mohammad Chaudhry case of 2010, the then president of the court presented the shocking and specific cases and the direct and personal complaints in his petition filed before the high court . These accusations were then analyzed by the full court and then found correct. Therefore, the lawyer should also cite specific accusations to illustrate the factual bad faith on the part of the president and the prime minister, Judge Akhtar observed. But the accusations made by the petitioner judge in the current petition were of a general nature, the judge said, adding that speaking for himself, he was more interested in specific cases to establish the accusation of bad faith.

The lawyer emphasized that immunity under article 248 was of a limited nature, and added that when the bad faith in fact and in law was alleged, the immunity under the constitutional provision disappeared. Explaining more, he said that the accusations regarding bad faith in the Iftikhar Chaudhry case were the same but the method was different.

"It means that although the methodology was different, the collateral purpose in both the Iftikhar Chaudhry case and in the Justice Isa case was the same," Judge Baqar asked.

The lawyer responded affirmatively and said that by acting on the advice of the prime minister, the president had acted unconstitutionally, which showed bad faith in the law. It is true that the president did not apply his mind before sending the reference to the SJC and, therefore, did not fulfill his duties in accordance with the Constitution.

But it could be seen differently, Judge Akhtar intervened, explaining that the president could say that after reading the prime minister's summary, he had applied his mind and decided to send the reference.

The lawyer cited Judge Isa's preliminary response to the SJC and explained that the president had not formed an independent opinion but acted on the advice of the prime minister. It is true that the reference was not sent to the cabinet, which was mandatory, he said, adding that one of the petitioner's pleas was that the president had not conducted any investigation before applying his mind to refer the reference to the SJC.

The lawyer Malik said that the SJC was simply an internal investigation forum to investigate the conduct of a judge, but had no jurisdiction to return the reference to the president, or investigate the conduct of the president or move to phase one which, according to the case Iftikhar Chaudhry, included filing a complaint with the president, collecting material, forming an opinion of the president and his board of directors to submit the reference.

Judge Sajjad Ali Shah noted that what the lawyer alleged was that the pen of the president or prime minister was outside the scope of article 211 of the Constitution, a provision that excludes the SJC to be challenged by any court of justice.

In the first phase, the higher court has the jurisdiction to intervene, but it is beyond the jurisdiction of the SJC because it is not a court of justice.

The SJC report is advisory in nature and cannot pronounce the rights of the parties or state a law. Nor can the SJC remove a reference based on bad faith, the lawyer argued.

Judge Bandial noted that the proceedings before the SJC could be stopped at any time by challenging any reference in the apex court. Judge Baqar wondered if the proceedings before the SJC could be challenged in the main court after the issuance of a justified cause notice.

Published on Dawn, November 5, 2019