ISLAMABAD: Justice Qazi Faez Isa, who is facing a presidential reference, startled the Supreme Court on Tuesday when he volunteered to furnish an affidavit highlighting the incidents that helped him reach the conclusion that he along with his family members was put under surveillance.

“I have taken instructions from the petitioner who says that he is prepared to put up before this court an affidavit detailing the facts and incidents that led him to reach the conclusion that he and his family were surveilled,” argued senior counsel Muneer A. Malik, who is representing Justice Isa of the Supreme Court before a 10-judge full court, hearing challenges to the filing of the presidential reference.

The offer was made by the counsel to assert that the petitioner judge and his family were subjected to surveillance and even the services of a UK-based tracing firm “Find UK People” were hired to explore the activities of Justice Isa’s family over the past 10 years.

But Attorney General Anwar Mansoor promptly objected to the affidavit offer, asking if any evidence in relation to a particular situation could be rendered at a hearing under Article 184(3) of the Constitution. There were forums available for such kind of evidence that required recording of evidence, the AG argued.

AG objects to the offer; counsel says services of UK-based firm hired to trace activities of petitioner’s family

However, Justice Umar Ata Bandial observed that the counsel was making his point to substantiate the allegations of malice and was replying to the observations made by a brother judge.

Legal observers believe that an affidavit, if filed, may have serious repercussions since counter-affidavits on oath will have to be moved to rebut the allegations levelled by the high constitution office holder like Justice Isa identifying the names of certain institutions. “In case the allegations were not rebutted, it has to be believed and if disputed then the Supreme Court has to determine who is speaking the truth and who is not,” explained a senior lawyer on condition of anonymity.

About the filing of an affidavit under Article 184(3), the lawyer recalled several cases, including the Panama Papers hearing during which the apex court held that the constitutional provision did not put any impediment rather provided ample authority to seek any assistance in reaching the truth.

Mr Malik informed the full court that he had no idea what was the mode of surveillance, whether it was done through hacking of emails of the petitioner judge, phone tapping or through protocol officer or whatever.

Justice Muneeb Akhtar observed that the counsel was perhaps inferring about the possibility of surveillance since he was emphasising that it was impossible for complainant Abdul Waheed Dogar to have access to the information about the properties in the UK. “From this the counsel was inferring about snooping but it seems that someone must have tailed a family member,” Justice Akhtar remarked.

The federal government never explained how they had got information about the offshore properties, the counsel said, adding that they had even engaged the private security agency after the filing of the reference.

Mr Malik explained that the presidential reference was filed in May 20, but the Asset Recovery Unit’s (AMU) letter dated June 26 stated that they had discovered more information about the properties.

“Once the reference was before the Supreme Judicial Council (SJC), what business the ARU had to find out more,” the counsel wondered.

Justice Bandial observed that they might be finding more material to produce as evidence before the SJC, asking the counsel if the presidential reference must be an open and shut case or the SJC prima facie could conduct its own investigations.

Justice Mansoor Ali Shah, however, observed that the counsel was arguing that the president could have inquired to acquire more information before filing the reference but it should be the president alone.

Justice Faisal Arab observed that the reference perhaps was a pleading and evidence was required to prove the allegations levelled in the reference. “That was why more material was gathered,” he remarked.

But the counsel reminded the court that the collection of material should be authorised by the president before the filing of the reference.

“In our system that ensures tracheotomy of powers, the judiciary in discharge of its judicial functions is insulated from the victimisation of the executive,” the counsel argued. “The president office is not a simple post office to merely act on the advice of the prime minister,” he said, adding that this was what had been established in the 2010 Justice Iftikhar Chaudhry case as well.

The advice to the president must be from the cabinet and not from the prime minister alone, the counsel explained, adding that Article 48 put the office of the president at a higher pedestal.

“What you want to say is that once the reference was filed, the investigation agencies collecting further material would have to act under the command of the SJC,” Justice Bandial noted.

The counsel replied in the affirmative, asking the court if the SJC had issued any such directives for the collection of supplementary evidence.

“What you want to say is that after the 18th Constitution Amendment, a suo motu power was created for the SJC, but when the reference was filed by the president, no additional material could be added like the allegation of benami properties which were added to supplement the reference,” Justice Akhtar remarked.

Referring to the bar under Article 211 of the Constitution that ousts the jurisdiction of courts to inquire the proceedings before the SJC, the counsel read out the 2010 Iftikhar Chaudhry case that had spelled out seven stages of which the first four stages were pertaining to the moving of a complaint before the president, collection of material, forming of opinion by the president and the president’s direction for the filing of the reference, while the latter three were related to the proceedings before the SJC, its report to the president and the president’s order to remove the judge.

He said the first four stages could be challenged and were subject to ordinary judicial review, while the challenge to the latter three was very difficult since it “attracts Article 211 of the Constitution and needs to establish malafidy of facts, coram non judice and without jurisdiction”.

Justice Bandial noted that Mr Malik had highlighted a new point and had said something substantial.

The court adjourned the hearing till Monday at the request of the counsel.

Published in Dawn, October 30th, 2019