Justice Faez Isa reference: Petitioner says info gathering by ASU illegal

ISLAMABAD: The Supreme Court was told on Tuesday that gathering of information by the Asset Recovery Unity (ARU) prior to its placement before the president was without lawful executive authority.

A 10-member full court headed by Justice Umar Ata Bandial resumed hearing in the identical petitions, challenging the presidential reference filed against Justice Qazi Faez Isa for allegedly not disclosing his foreign properties in his wealth returns.

Other members of the bench include Justice Maqbool Baqir, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Qazi Amin Ahmed.

Commencing his arguments, Salman Akram Raja, counsel for Pakistan Bar Council (PBC), submitted that no doctrine of inherent or residuary executive authority or rule 4(5) of the Rules of Business, 1973 can provide the basis for the invasive authority exercised by the ARU, without statutory sanction and in suppression of the authority vested by law in statutory authorities and functionaries, that has violated protections available to the judge who is a petitioner before the apex court.

The counsel contended that the obtaining of information in the stage prior to its placement before the president could only have been through recourse to the normal flow of information made available under the various statutes such as the Nadra laws or property registration laws. Proper legislation that provides for a no-invasive collection and vetting of information in compliance with the scheme of Article 209 and the judgment, para 64 in Justice Iftikhar Muhammad Chaudhry case is needed,” Salman Akram Raja contended, adding that the said para 64 has not dealt with the pre-presidential stage.

The learned counsel submitted that the opinion to be formed for the purposes of Article 209 is to be formed on the basis of lawfully collected information.

The opinion envisaged by Article 209(5) is to be formed by the President independently without being bound by the advice of the prime minister or the cabinet in terms of Article 48 and such independence is inherent in the very idea and the conception of an opinion,” the counsel submitted, adding that dictated opinion is no opinion.

He contended that the role given by para 64 in Justice Iftikhar Chaudhry case clearly indicates that the president is not a mere a rubber stamp. He submitted that the opinion in terms of Article 209(5) must satisfy not only the requirement that it be based on the application of mind to the lawfully collected material placed before the president and it must also ensure protection of the due process right of the judge concerned and his family.

He further submitted that the alleged non-compliance of Section 116 can only attract notice and further action under the Income tax law. “Patently, wrong reading of Section 116(1) has been made by the president and no notice to this day has been issued under section 116(1) or any other provision of the Income Tax Law to the family of the judge that or the judge himself,” the counsel contended.

He submitted that the Supreme Judicial Council cannot function as the first tier of income tax administration and such action would violate not only initial due process but also deny the multiple rights of appeal under the law. “In the alternative, even if the opinion in terms of Article 209(5) is to be formed by the prime minister and the cabinet, the opinion must satisfy the requirements of honouring due process for it to be considered reasonable”, Salman Raja submitted. He further contended that the judicial review of the opinion formed by the president lies in the jurisdiction of this court and not the SJC. He said it is the right of the petitioner judge concerned to seek such review. He said the SJC is not a court but only a fact finding forum and unique body that carries the highest stature. The court adjourned the hearing for today (Wednesday).