ISLAMABAD: Attorney General Anwar Mansoor began his answer to a set of petitions challenging the filing of the presidential reference against Justice Qazi Faez Isa with some fireworks on Tuesday. Usually this does not go down well on a solemn occasion like a full court of the Supreme Court.

Taking exception to what the AG stated before the full court, the judges asked the highest law officer to withdraw the statement and dubbed it as “uncalled for” and “too serious”. At the same time, they restrained the media from reporting on the matter.

After the hearing, a number of lawyers described the incident as something done by the government team as part of a plan.

The AG began by stating he realised that he had said something which was not pleasant for the bench. The mood at Courtroom No 1 suddenly turned sombre.

“This was uncalled for,” reacted Justice Maqbool Baqar.

Supreme Court judges take exception to attorney general’s remarks, describing them as ‘uncalled for’ and ‘too serious’

The AG replied that he would not add anything, but Justice Syed Mansoor Ali Shah observed the AG had made a “serious statement” and he should withdraw it.

“You are the state and if you have some issues or reservations, you can put it in writing instead of expressing it at the rostrum,” observed Justice Umar Ata Bandial. “We (judges) function with the fullest confidence of the people.”

Attorney General Anwar Mansoor replied: “All the judges will act fairly. I have full confidence in them.”

Justice Baqar again asked the AG to withdraw his remarks so that things proceed swiftly. “We don’t want complications.”

But the attorney general refused to retract the remarks. The court, however, asked the media not to publish the comments since the “AG has withdrawn them”.

The AG then read out the preamble to the Constitution to establish the importance of an independent judiciary and how it should be secured.

While citing a quote from a book that “nothing can call nations to flourish like justice”, he argued whether the perception that Justice Isa owned three offshore properties or the same have been financed by him were correct or not.

Anwar Mansoor said the judges who sit on the Supreme Judicial Council (SJC) had been asked to verify whether the perception so created was true or not, adding these were only perceptions and not allegations.

The Attorney General emphasised that by sending the reference, no ultimate conclusion had been or could have been drawn by the executive, including the president.

He cited the judges’ oath and went on to argue that through this oath, a judge promises to act without fear or favour.

“Does it mean that the mettle of judges should be put to test,” wondered Justice Bandial.

Subject matter

The AG then asked what the subject matter of the case was and whether it was an inquiry commenced before the SJC against the petitioner judge for determination of facts and would the apex court wish to proceed further in the matter.

Whether the petition under Article 184(3) of the Constitution is maintainable when an investigation is being made by the SJC on personal matters even if it relates to his fundamental rights, the AG wondered.

Anwar Mansoor also asked whether the SJC had the jurisdiction to examine the validity of the receipt of information, collection of material, formation of opinion and sending of a reference by the president.

He also questioned could the Supreme Court determine the “true and real facts” on the basis of evidence through a petition under Article 184(3) of the Constitution and whether the apex court can enter into a fact-finding inquiry in the presence of an available forum.

“Can the apex court scrutinise the facts in question before the SJC,” the attorney general wondered.

He also asked whether Article 48 of the Constitution requires the president to act on the prime minister’s advice or the cabinet could be diluted.

The formulations also questioned whether the Assets Recovery Unit (ARU) was formed lawfully and its scope approved by the cabinet and whether the prime minister can seek assistance through his aides and advisers, especially when the information needs to be obtained for uncovering wealth and property in compliance of the apex court’s orders.

Anwar Mansoor asked what surveillance was and whether seeking information about undisclosed wealth amounted to surveillance and can the information obtained by an authority through duly appointed officers be used for the purposes of inquiry, especially when facts have not been denied.

He wanted to know whether the inquiry pending before the SJC could be conducted in public.

When Justice Yahya Afridi asked about the specific allegations against Justice Isa, Anwar Mansoor replied that Justice Isa had not disclosed the purchase of three properties, as well as “transfer of funds”, in his wealth statement, as required under Section 116 of the Income Tax Ordinance.

Published in Dawn, February 19th, 2020