ISLAMABAD: Senator Raza Rabbani stunned the Supreme Court on Wednesday by reading out the notification and the terms of reference (ToR) for formation of the Asset Recovery Unit (ARU) and arguing that the organisation was functioning without an enabling law.

“Can these notifications or ToR override Article 209 — a constitutional provision,” wondered Raza Rabbani, terming the inquiry conducted by the ARU a witch-hunt.

Senator Rabbani is representing the Sindh Bar Council before a 10-judge Supreme Court bench hearing a set of challenges to the filing of the presidential reference against Justice Qazi Faez Isa.

Reading out the Nov 6, 2018, notification, the counsel argued that the cabinet had decided to establish an asset recovery unit for the recovery of unlawful offshore assets. The purpose behind setting up the agency was not the collection of material, but to conduct an inquiry.

The ToR suggests, the counsel argued, that the ARU could procure or pursue evidence or trace and detect information regarding Pakistani citizens with the help of NAB, FIA, FBR and law enforcement agencies.

But the most horrific aspect of the ToR is section 7 as it empowers the unit to request any intelligence agency at the federal government’s command to assist it in the collection of material, particularly against judges, Raza Rabbani said.

This amounts to giving a carte blanche to intelligence agencies to invade the privacy of any individual and strengthening the executive’s hand against judges, the counsel contended.

To a query, Mr Rabbani said he did not know of any other organisation in the world with such vast, unbridled powers.

The counsel stressed that the ARU had carried out a thorough investigation against Justice Isa, citing a May 10, 2019, letter written by the unit to the law ministry in which it had conceded that since the complainant, Abdul Hameed Dogar, had not provided enough evidence, it conducted an investigation and was in the process of forwarding the findings to the law minister.

When Justice Syed Mansoor Ali Shah asked who had authorised the unit to conduct the inquiry, the counsel replied that the ARU chairman initiated the inquiry on his own.

Justice Maqbool Baqar remarked it was surprising that a law had armed a subordinate agency with such vast powers.

Senator Rabbani cited the government’s Rules of Business to suggest the law itself had not given such powers to the ARU. “The real ministerial powers rest with the prime minister alone.”

Justice Baqar wanted to know whether any ministerial powers had been delegated to the ARU. Senator Rabbani replied this was still a “murky area” since the ARU’s duties had not been spelt out clearly.

Justice Mansoor Ali Shah wondered whether the ARU’s services were available to ordinary citizens. The counsel replied that it “depends upon the class of a citizen”, adding that the unit had conducted a wide property search of Justice Isa without any enabling law in contravention of Article 209 of the Constitution.

He then cited ARU’s letter to highlight that the unit had itself admitted that it carried out an in-depth inquiry and obtained copies of property documents from the United Kingdom’s land registry.

“Therefore, the entire exercise is far beyond the terms of collecting material. Instead it is a full-fledged probe,” Senator Rabbani argued.

Justice Bandial, however, observed that the points raised by the counsel about the issuance of notification for the establishment of ARU were very significant. He added that there was a law, but it dealt only with income tax matters.

The counsel contended that the entire process of giving advice to the president for filing of the reference was non est and unconstitutional. He prayed to the apex court to quash the reference, saying if the initial step was unconstitutional, the entire structure built on it would come crashing down.

Raza Rabbani made an observation that the Feb 6, 2019, judgement in the Faizabad dharna (sit-in) case had “adversely affected the present coalition government, consisting mainly of the Pakistan Tehreek-i-Insaf and Muttahida Qaumi Movement”. The judgement was authored by Justice Isa.

Senator Rabbani went on to link the reference against Justice K. K. Agha of the Sindh High Court to a judgement delivered by him on Sept 11, 2018, in a case related to the mayhem in Karachi on May 12, 2007, arguing the “malice against him stems from this verdict”.

Justice Bandial observed this conclusion was based on surmise, asking Mr Rabbani whether Justice Agha had ever made such an allegation.

The counsel replied that “the chain of events and circumstantial evidence lead to this conclusion”. Moreover, Mr Rabbani recalled, Justice Isa had once appeared as amicus curiae in that case.

Justice Bandial observed that the counsel had named a political party without any material and wondered whether any appeal or review petition had been filed against the judgement on the May 12 incident.

Justice Yahya Afridi asked Rasheed A. Razvi, who is representing the Sindh High Court Bar Association and the Pakistan Federal Union of Journalists, whether the president should discard a piece of information about an undisclosed property of a judge discovered through an illegal, roving inquiry by an illegal authority.

Mr Razvi replied that any investigation should follow on the orders of the president.

Published in Dawn, January 23rd, 2020