ISLAMABAD: Justice Maqbool Baqar of the Supreme Court on Monday asked the counsel for Justice Qazi Faez Isa facing a presidential reference to elucidate the executive’s authority to conduct an inquiry against a sitting superior court judge through a forum which has not been prescribed in the law.

Justice Syed Mansoor Ali Shah also asked Muneer A. Malik to explain under what law the Asset Recovery Unit (ARU) had collected the material to be used in the reference against Justice Isa, wondering if an individual had the right to collect evidence against the judge and whether the judge also enjoyed the right to privacy and dignity as guaranteed under Article 14 of the Constitution.

Justice Shah also asked the counsel if the Supreme Judicial Council (SJC), while proceeding against a judge, could also be allowed to move against the conduct of the president for referring the reference to the council by lifting the immunity under Article 248 of the Constitution.

Justice Umar Ata Bandial, who was presiding over a 10-judge full court, however, recalled that the ARU was set up against the backdrop of the 2018 Supreme Court order in the foreign accounts case.

The court was hearing a set of petitions challenging the filing of the presidential reference against Justice Isa of the Supreme Court.

Advocate Muneer Malik will reply to the questions when the court would take up the matter on Tuesday. However, he referred to Article 248 of the Constitution which provided immunity to the president, prime minister, governors, chief ministers and ministers. He argued that the framers of the Constitution were clear in their mind that this clause should afford protection to the actions if taken by constitutional office holders within the four corners of the Constitution.

The same immunity was not intended to protect the actions of individuals as a consequence of action that was illegal, coram non judice or mala fide, the counsel emphasised. He cited the 1975 Zahoor Ellahi versus Zulfikar Ali Bhutto case in which it was held that the immunity could not be extended to any illegal or unconstitutional acts.

Justice Muneeb Akhtar, a member of the bench, however, recalled that in the 2010 Iftikhar Mohammad Chaudhry case, shocking and specific instances and direct and personal allegations were levelled by the then chief justice in his petition filed in the apex court. These allegations were later analysed by the full court then and found to be correct. Therefore, the counsel should also cite specific allegations to illustrate the factual mala fide on the part of the president and the prime minister, Justice Akhtar observed. But the allegations levelled by the petitioner judge in the current petition were general in nature, the judge said, adding that speaking for himself he was more interested in specific instances to establish the allegation of mala fide.

The counsel emphasised that the immunity under Article 248 was limited in nature, adding that when mala fide in law and fact were pleaded, the immunity under the constitutional provision disappeared. Explaining further, he said the allegations with respect to mala fide in the Iftikhar Chaudhry case were the same but the method was different.

“You mean to say that though methodology was different, the collateral purpose both in the Iftikhar Chaudhry case and Justice Isa case was the same,” asked Justice Baqar.

The counsel replied in the affirmative and said that by acting on the advice of the prime minister, the president had acted in an unconstitutional manner which showed the mala fide in law. Admittedly, the president did not apply his mind before sending the reference to the SJC and, therefore, failed to discharge his duties in accordance with the Constitution.

But it could be looked in another way, Justice Akhtar interjected, explaining that the president could say that after going through the summary by the prime minister he had applied his mind and decided to send the reference.

The counsel cited Justice Isa’s preliminary reply to the SJC and explained that the president had not formed an independent opinion rather acted on the advice of the prime minister. Admittedly, the reference was not sent to the cabinet which was mandatory, he said, adding that the petitioner judge’s one of the pleas was that the president had not conducted any inquiry before applying his mind to refer the reference to the SJC.

Advocate Malik said the SJC was simply a domestic fact-finding forum to probe the conduct of a judge but had no jurisdiction to return the reference back to the president, or inquire into the conduct of the president or go into phase one which, according to the Iftikhar Chaudhry case, included moving a complaint before the president, collecting material, forming opinion by the president and his directive for filing the reference.

Justice Sajjad Ali Shah observed that what the counsel pleading was that pen of the president or the prime minister was out of ambit of Article 211 of the Constitution — a provision which excludes the SJC to be questioned by any court of law.

On phase one, the apex court has the jurisdiction to intervene but it is beyond the jurisdiction of the SJC because it is not a court of law.

The SJC report is recommendatory in nature and cannot pronounce rights of the parties or enunciate a law. The SJC also cannot strike down a reference on the basis of mala fide, the counsel argued.

Justice Bandial observed that proceedings before the SJC could be stalled any time by challenging any reference in the apex court. Justice Baqar wondered whether the proceedings before the SJC could be challenged in the apex court after the issuance of a show-cause notice.

Published in Dawn, November 5th, 2019