Justice Isa’s counsel seeks dismissal of reference over ‘constitutional breach’

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–Munir A Malik tells court president ‘violated’ Constitution by acting on the advice of premier in this matter

–Justice Shah questions legal merits of data collection, says it’s unconstitutional to breach a judge’s privacy

ISLAMABAD: Munir A Malik, the counsel for Justice Qazi Faez Isa on Monday asked the court to dismiss the reference against the Supreme Court (SC) judge as he contended that there had been violations of the Constitution during the filing of the reference.

Presenting the case before the full bench of apex court led by Justice Umar Ata Bandial, which resumed hearing on the petitions filed against the presidential reference, he said that President Dr Arif Alvi was bound by the Constitution to “apply his mind to the reference” instead of simply acting on the advice of Prime Minister Imran Khan. He added that the president had himself “confessed” to acting on the advice of the premier, which constitutes to him taking an unconstitutional step.

He contended that the reference was based on “mala fide intentions”, therefore, the court must make President Alvi, PM Imran and Law Minister Justice Farogh Naseem part of the proceedings. “While Article 248 makes it clear that prime minister and ministers cannot be made answerable to the court, they are bound to act in accordance with the Constitution and there cannot be imputing for anyone who breaches the Constitution,” he added. He once again reiterated that the reference had been filed without prior approval of the federal cabinet.

Justice Faisal Arab then asked him if it was mentioned in the reference that the president had not “applied his mind” to the reference. Justice Manzoor Ali Shah also asked whether the phrase “applying his mind” means that the president had to supervise the collection of all evidence in the reference.

Justice Shah further asked about the legal merits of the collection of material against the SC judge. “If the material was collected illegally, then it means the judge’s privacy guaranteed under Article 14 has been violated,” he said.

Malik said that the president should have “applied his mind” to know how the material was collected. He also said that the president’s act of acting on the advice of the premier in this matter was unconstitutional and constitutes “mala fide intent”.

Justice Isa’s counsel, while responding to Justice Bandial’s observation regarding the apex court’s jurisdiction under Article 184 (3), also said that the Supreme Judicial Council (SJC) exceeded its jurisdiction by issuing show-cause notices on points which were not raised in the reference.

The latter said that remedy under Article 184 (3) was not open to everyone as, after the SC judgment in the Shaukat Aziz Siddiqui case, the affected judge can now make a request to the SJC for a public hearing.

However, Malik said the situation in this particular case was also extraordinary as this was only the second time in Pakistan’s history that a full bench was hearing the case of an SC judge.

Justice Muneeb Akhtar, while comparing the Iftikhar Muhammad Chaudhry case with Justice Isa’s case, noted that in the former there were specific, direct and serious allegations of mala fide against then-president Pervez Musharraf.

In Justice Isa’s case, he said, there are general allegations against the referring authority. “You have to give specific and direct incidents which could establish mala fide against executive authorities,” said the judge.

Justice Maqbool Baqar asked whether the issuance of a show-cause notice by the SJC bars the apex court from entertaining the judge’s petition against the council’s proceedings.

Malik, while referring to the Iftikhar Muhammad Chaudhry judgement, contended that there was no constitutional bar under Article 211 if the reference is based on mala fide, illegal and non coram judice.

Justifying Justice Isa’s decision to approach the SC, his attorney stated the SJC cannot strike down the presidential reference but the apex court can do the same in view of the principal laid down in the Iftikhar Chaudhry case.

The case was then adjourned till Tuesday.

The reference filed against Justice Isa alleges that he acquired three properties in London on lease in the name of his wife and children between 2011 and 2015, but did not disclose them in his wealth returns. Justice Isa has contested the allegation, saying he is not a beneficial owner of the flats — neither directly nor indirectly.