Justice Qazi Faez Isa case: Supreme Court seeks 4 replies from federation over presidential reference

ISLAMABAD: The Supreme Court (SC) Tuesday directed the federation to provide answers to four crucial questions about the legality of the Assets Recovery Unit (ARU) for collection of evidence and its functioning in the presidential reference, filed against Justice Qazi Faez Isa.

A 10-member full court, headed by Justice Umar Ata Bandial, resumed hearing in the identical petitions, challenging the presidential reference, filed against Justice 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 Muhammad Qazi Amin Ahmed. The bench sought explanation from the federal government as to whether the ARU was empowered to conduct an inquiry against a sitting judge of the apex court. The court allowed Barrister Farogh Naseem to represent the federation inthe matter, although Munir A Malik, counsel for Justice Isa, while appearing before the court through video link from Karachi Registry, raised objection over Barrister Farogh Naseem for representing the federation in the matter.

Justice Umar Ata Bandial reminded Farogh Naseem that counsel for the petitioner had contended that the material was collected, prima facie, illegally. “Now you have to tell us can you rely on the evidence that is allegedly collected illegally,” Justice Bandial asked Farogh.

What is the Asserts Recovery Unit, and how it falls under Article 209 of the Constitution, related to accountability of judges of the superior judiciary? Why the complainant approached the ARU against the judge, instead of using the legal channel by approaching directly the Supreme Judicial Council (SJC) or the President of Pakistan? You have to give us a complete picture,” Justice Bandial directed the federation’s counsel.

The court directed Farogh Naseem to explain in detail also as to why the ARU conducted an inquiry into the allegations against the judge, instead of the SJC, and the President. “We can give you another 12 hours to prepare, but you have to focus on these questions and assist us on Wednesday (today),” Justice Bandial told Farogh Naseem and adjourned the hearing.

Commencing his arguments, Farogh Naseem contended that he would be appearing on behalf of the federation as well as Assets Recovery Unit Chairman Shahzad Akbar Mirza, while the law ministry would be represented by Irfan Qadir Advocate.

He submitted that the three London properties were in the names of spouse and children of the petitioner, and it was an admitted fact, hence there was no question of conducting an inquiry into these properties.

He submitted that there was a close relationship between the judge and his spouse, hence it was essential for the judge to disclose the money trail for these properties. “Judges are placed at very high pedestal in our society, hence they should be clean from any criticism,” Farogh submitted.

Justice Mansoor Ali Shah, a member of the bench, asked as to whether he was answerable for the properties of his son, who is financially independent? Justice Yahya Afridi asked as to why a judge should be asked for the properties of his relatives who are finically independent?

Farogh Naseem, however, questioned from where funds came for purchasing the properties and what were the sources? To which Justice Umar Ata Bandial observed that the petitioner had stressed that his spouse and children should be asked.

Justice Yahya Afridi said that the Income Tax Ordinance was available for knowing this. Farogh Naseem stated said that that was not a tax case. During the course of hearing, the court took strong exception to placing a document on record after one year regarding the complainant Abdul Waheed Dogar pertaining to the properties of the petitioner.

Justice Maqbool Baqir, another member of the bench, questioned as to why the document was delayed on which the case was based upon? Justice Sajjad Ali Shah observed that Munir A Malik, counsel for the petitioner had repeatedly asked for provision of the document, but he was not provided with it so.

The judge said that even the complainant, Abdul Waheed Dogar, was asked in the courtroom while the Additional Attorney General was also asked about reading the same document, but he expressed ignorance in that regard.

Syed Iftikhar Hussain Gillani, counsel for KP Bar Council, present in the courtroom, stood up and complained that he too was not yet provided a copy of the said document. Farogh Naseem, shifting the burden over to the former attorney general Anwar Mansour Khan, submitted that the document was handed over to his office, but his office did not pay any attention to it.

The counsel for the federation argued that there was an allegation of misconduct against the petitioner judge for which the SJC had issued him show-cause notice. “Once the show-cause notice was issued, the apex court had no jurisdiction to hear the matter, as under Article 211 of the Constitution, the proceedings before the SJC, its report to the President and the removal of a judge under clause 6 of Article 209 cannot be called in question in any court.

Justice Maqbool Baqir told Farogh Naseem that the petitioner had contended that the instant reference had been filed on the basis of mala fide and was unconstitutional. “Hence you should first argue on the subject of mala fide and tell us about the basis on which the reference had been filed against the petitioner judge,” Justice Maqbool Baqir asked the federation counsel.

Justice Bandial also asked Farogh Naseem to satisfy the court on the point of mala fide. “We know the importance of the show-cause notice, but you first argue on the point of mala fide,” Justice Bandial added.

Earlier, Munir A Malik, counsel for Justice Faez Isa, raised objection over Barrister Farogh Naseem for representing the federation in the instant matter.

“I respect Farogh Naseem, but do not believe that his appearance is in accordance with the law,” Munir A Malik contended, adding that a fresh CMA had been filed by his client the other day in that regard.

Justice Qazi Faez Isa, in a fresh application, filed the other day had requested the apex court not to allow former minister for law Farogh Naseem to represent the federal government or any private respondent in a case.

He had contended that the conduct of Farogh Naseem amounted to solicitation, which is specifically prohibited by Rule 135 of the ‘Canons of Professional Conduct and Etiquette of Advocates’ enacted pursuant to the Pakistan Legal Practitioners and Bar Councils Rules, 1976.

During the hearing, Justice Bandial reminded Munir A Malik that the government was represented by Attorney General for Pakistan as required under the Constitution; however, he said that on the last date of hearing, the newly appointed Attorney General had excused himself from representing the federal government in this matter, saying that as he had already given his opinion in the said matter; therefore, he cannot pursue it on behalf of the federation.

Justice Bandial further told the counsel now the government had engaged a counsel and now the court needs good assistance. “We deserve sound assistance to arrive at proper conclusion,” Justice Bandial remarked, adding that they are going to go for a break in June for summer vacation; therefore, they want to continue the case.

Munir A Malik, however, submitted that the eyes of the people were on this case; hence he submitted that the law should be followed strictly, adding that the case was about the accountability of a judge; therefore, there had to be a certification from the Attorney General.

Farogh Naseem, however, submitted that the Attorney General has issued certification in his favour. Justice Bandial asked Naseem to place on record the said certification. Munir A Malik stressed that the sanction of the federal government in that regard should also be placed on record.

During the hearing, Assets Recovery Unit (ARU) Chairman Shahzad Akbar Mirza was also present in the courtroom. Meanwhile, the court adjourned the hearing for Wednesday (today).