ISLAMABAD: Justice Umar Ata Bandial on Monday wondered whether the petitions challenging the filing of the presidential reference against Justice Qazi Faez Isa were maintainable or not since the Supreme Judicial Coun­cil (SJC) had already taken cognisance and initiated inquiry against the judge.

Justice Bandial, the head of a 10-judge Supreme Court bench which had taken up a set of petitions challenging the filing of the reference against Justice Isa, observed that the purpose and effort should be to make workable Article 209 of the Constitution, under which the SJC commences proceedings against a judge.

When allegations have been made in the complaint by the complainant about acquiring offshore properties by the wife and children of the judge, should not this allegation be answered when the only possible manner is to issue notice to the judge, Justice Bandial observed.

And would pointing objections to the issuance of the notice mean that the inquiry by the SJC against the judge should come to an end, Justice Bandial wondered.

Justice Bandial also observed that treating the president as a mere rubber-stamp in such matters would “entail complications if we accept that the entire matter exclusively rests with SJC”.

The observation came after Senator Raza Rabbani, who represented the Sindh Bar Council, argued before the apex court that the president’s opinion was tentative in nature as it was up to the SJC to conduct the inquiry and decide whether the judge was guilty of misconduct or not.

No fetters can be imposed upon the judiciary’s independence, the counsel argued. Otherwise, the entire edifice of civil society would cease to exist.

“How can we say today that the right to hold an inquiry into the allegations against the judge by ISI, FIA or the FBR should be condoned and if ignored, this will open the floodgates of chaos,” Mr Rabbani questioned.

“If the prime minister or the law minister are allowed to order an inquiry against a judge, it will hand the executive a lever to manipulate judges,” the counsel expressed an apprehension.

“Don’t you think that a stronger lever will be handed to the executive since a simple complaint may trigger a reference against the judge,” wondered Justice Faisal Arab.

Citing Article 209 (4) of the Constitution, the counsel argued that the president does not feature in this provision since it only empowers the council to conduct an inquiry against a judge.

“You want to say the President only forms his opinion whether to refer the reference before SJC against a judge or not and that the president is merely a source,” Justice Maqbool Baqar observed.

At the outset, Raza Rabbani observed that he was a little apprehensive at the last hearing on Dec 20 that a nine-member bench will resume hearing or not, adding that he was glad “the same 10-judge bench is hearing the matter since after the retirement of former chief justice Asif Saeed Khosa, Justice Bandial has become a member of SJC”.

The counsel said he would try to understand Article 209 (5)(6) of the Constitution and try to ascertain whether the process of filing of the present reference against Justice Isa conformed to these significant clauses.

“And that what will be the effect on filing of the instant reference in view of the mala fide, in fact and in law, allegedly floating on the surface of the initiation and process of filing of the reference,” Mr Rabbani wondered.

His formulation included a question whether the bar of Article 211 of the Constitution on courts taking cognizance of proceedings before the SJC was a blanket provision or not. Under this provision, no court can question the SJC’s findings.

The moot point before the court for determination, the counsel argued, was whether an inquiry could be ordered or instituted by any other person except the Supreme Judicial Council.

He recalled that it was on the instructions of Assets Recovery Unit’s chief that a full-fledged inquiry was instituted and the FBR was instructed to furnish confidential reports whereas the FIA was directed to investigate allegations levelled in the complaint.

Published in Dawn, January 21st, 2020