SC guidelines sought for govt to stop snooping on judges – Pakistan

ISLAMABAD: The lead attorney representing Judge Qazi Faez Isa wondered on Tuesday if a judge must necessarily be arrested or suffer other outrages to cross the criteria of establishing that his dignity and privacy have been invaded.

"Nobody leaves a trail to prove instances of the invasion of privacy and covert surveillance against a judge," argued lawyer Muneer A. Malik. The lawyer made a comparison with the events after March 9, 2007, when former justice president Iftikhar Muhammad Chaudhry was subjected to such abuses during the regime of the then general president Pervez Musharraf.

Attorney Malik stressed the need for the Supreme Court to establish guidelines while ruling on the case in question, explaining what the executive can do or not, so that no judge can be deprived of his privacy.

Judge Umar Ata Bandial, while directing a full court of 10 judges who listened to a set of petitions against the presentation of the presidential reference against Judge Isa, noted that the court should not set high standards in deciding the present case. The constitutional provision not only dealt with judges of higher courts, but also dealt with the federal ombudsman, the auditor general, the members of the Electoral Commission, as well as the president of the NAB, the judge said, adding that Otherwise, everyone against whom the removal procedure would begin under Article 209 would approach the SC challenging the same.

"When it comes to a judge, then this court has to sit on the highest pedestal," the lawyer replied. And when the court observed if the lawyer hinted at something, the lawyer recalled the saying: “When they come to find the unionist to pick him up, I kept quiet because it wasn't me, and when they come for the Jews and I remained silent, and when they came for me, there was no one left to speak for me. "

Given this, Judge Faisal Arab observed that the SC always intervened when he felt that an injustice had been committed.

On Tuesday, Judge Muneeb Akhtar noted again that the lawyer should give specific allegations to establish bad faith on the part of the president, but what had been said in the accusations was of a general nature. He recalled that the lawyer relied on observations made in a concurrent trial by Judge Ijaz in the Iftikhar Mohammad Chaudhry case, which was not the ratio decisionndi (rule of law) and, therefore, not the law of the country. Therefore, he added, the lawyer would have to satisfy the court that the accusations were based on something that had a binding authority.

The lawyer emphatically said that the Asset Recovery Unit (ARU) did not have the mandate to collect material against superior court judges, adding that an investigation could not be conducted without the proper authorization of the president.

During the hearing, Judge Maqbool Baqar asked the lawyer if the president had the option of choosing a forum for the collection of material or evidence.

The forum began with the collection of material against a judge after the president formed an independent opinion and after the complaint reached the president's desk as it was not simply a "postbox," the lawyer said. "To investigate a judge, the complaint has to go to the president because he is isolated from the executive," said the lawyer. The appointment and removal of the judge was an executive function of the federation, therefore, the approval of the cabinet was necessary, he argued.

When the lawyer referred to the request for review by the Tehreek-i-Insaf of Pakistan in the Dharna Tehreek-i-Labbaik Pakistan case, Judge Bandial noted that he had withdrawn. But this showed the mood, no matter if he was removed later, the lawyer replied, arguing that law minister Farogh Naseem presented the summary to the prime minister for reference even though the Iftikhar Chaudhry case required proper authorization from the President. . The lawyer argued that the reference had no jurisdiction, lacked constitutional authority and was in bad faith: the authority to send a reference was a single constitutional function conferred only to the president under Article 209 and not a function within the executive authority of the federation

Given this, Judge Akhtar noted that, according to the 18th Constitutional Amendment, the president no longer had any discretion, but had been completely eliminated, but the lawyer argued otherwise.

Meanwhile, in a separate case, Judge Isa questioned the practice of registering the entry and exit of people in South Waziristan. A bank of two judges composed of Judge Isa and Judge Mazhar Alam Miankhel had dealt with a case related to the granting of bail to Sher Zaman, in the face of allegations of injuring a person in Dera Ismail Khan.

Posted in Dawn, November 6, 2019