Govt asks SC to reject Justice Isa’s challenge to reference – Pakistan

ISLAMABAD: The federal government on Tuesday asked the Supreme Court to reject the challenge of Judge Qazi Faez Isa to the presentation of a reference against him, since it was presented legally and in no way undermines the independence of the judiciary.

A 45-page reply, provided by the government through Attorney General Anwar Mansoor in response to the petition, argued that the process of accountability of judges by their own peers improved the independence of the judiciary and President Arif Alvi had moved the reference in exercise of his constitutional duties according to Article 209 (5) of the Constitution.

The rejoinder emphasized that the reference against Judge Faez Isa of the Supreme Court was moved without any bad intention, malice or hidden motives or to achieve any collateral purpose. He argued that the presentation of the reference by the president after an opinion was formed on the prime minister's advice could not be investigated under Article 48 (4) of the Constitution by the Supreme Court.

He says that the presidential reference presented after forming an opinion on the prime minister's advice cannot be investigated by the apex court according to Article 48 (4)

The very premise of the presidential reference, explained the answer, was the "benami" nature of foreign properties that were hidden and were not revealed as required by law. In addition, the wife and children of the petitioner judge did not have an independent source of income and were not in a position to provide the necessary funds for the purchase of three properties when they were purchased.

As a result, the only and unavoidable conclusion that could be drawn was that the properties in London in question were of a Benami nature and that the petitioner judge was the ostensible owner of these properties, according to the response.

He said that the presidential reference was not a civil lawsuit, but a directive to conduct an investigation into the petitioner's conduct, adding that it was also incorrect to say that the Supreme Judicial Council (CSJ) had assumed the role of the Federal Board of Income The only question that the SJC was investigating was whether the petitioner had been guilty of financial irregularities in the purchase of these properties, said the answer, alleging that the petitioner was trying to escape the investigation procedures initiated in the presidential reference on account of the existence of properties not disclosed in the constructive possession and property of the petitioner for weak reasons.

In addition, he said that the petitioner judge when presenting the current petition was trying to politicize the issue so that an investigation could not be carried out, a constitutional obligation of the SJC. The fact that the petitioner judge was a tax filer and paid a substantial amount of the income tax did not demonstrate in any way that the property in the United Kingdom was not his property, the response argued. "Therefore, the only way the petitioner judge can deny ownership of the property is to establish an independent source of income for his wife and children and disclose his financial position at the time of purchase of the property," he said.

The answer denied that the reference anyway destroyed the independence of the judiciary or subordinated it to the executive branch or amounted to subverting the Constitution. All actions are in accordance with the mandate of the Constitution and that the reference has been sent to the companions of the petitioner judge for investigation and nothing else. He argued that the judges could not be equated with ordinary mortal human beings as they were required to possess the highest quality of intellect and represent an excellent character.

"The process of accountability is to keep the flow of justice pure and immaculate so that people's confidence in the judiciary remains intact," the answer explained, adding that it was for the independence of the judiciary that the editors of the Constitution decided to constitute a constitutional body composed of high-ranking judges of the Supreme Court and of the superior courts to carry out the accountability of their own peers.

The response said that the petitioner judge had raised factual controversies, which could not be decided in the original constitutional jurisdiction of the Supreme Court. “When the factual position is not admitted as presented, the registration of bulky evidence under Article 10A of the Constitution would be required to reach a fair and adequate conclusion. Such exercise cannot be carried out in the original jurisdiction of the Supreme Court in accordance with Article 184 (3) of the Constitution, ”said the response.

In addition, he said, the jurisdiction under Article 184 (3) of the Constitution was a qualified jurisdiction that required that a question be of public importance with respect to the violation of fundamental rights.

Posted on Dawn, October 9, 2019