ISLAMABAD                -             The Supreme Court of Pakistan was Monday informed that over the years the President’s power to act on his whims and fancies have been curtailed for the independence of the judiciary.

The larger bench of the apex court, headed by Justice Umar Ata Bandial, conducted hearing of the identical petitions challenging presidential reference against Justice Qazi Faez Isa for allegedly not disclosing his foreign properties in wealth statements.

Besides the apex court judge, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils and Association of Punjab, Sindh and Balochistan and Abid Hassan Minto, and I A Rehman have also challenged the Presidential Reference against Justice Qazi Faez.

Raza Rabbani Advocate, on behalf of Sindh High Court Bar Association, contended that the ability of the President to act on his own whims and fancies has gradually been curtailed for the independence of the judiciary and now many functions are done in the name of the President and the discretionary power has been limited.

Before starting his arguments, Rabbani said that he had apprehensions whether a nine or ten-member bench would hear the petition. After the retirement of Justice Asif Saeed Khan Khosa, now Justice Umar Ata Bandial will sit in the SJC, as he is at No.3 on the list of Supreme Court judges.

According to Article 209 of the Constitution, the Council consists of Chief Justice of Pakistan, the two next most senior judges of Supreme Court and the two most senior Chief Justices of High Courts.

Giving historical perspective of the constitution regarding power of President particularly with reference to Articles 209 and 48 of Constitution, Rabbani said that the bars have not taken new position but their struggle for the independence of judiciary has been consistent. Due to their concerns and pressure the discussion on Articles 209, 210 and 211 reopened and revisited. Even the parliament was kept away so that there is no fetter on the independence of the judiciary.

Rabbani argued that directing FIA, FBR, and ISI to investigate the judge is something, which is not tenable. “It will open the floodgate of chaos.” He said with great struggle the SJC was revived therefore, the inquiry and recommendation to investigate the judge should be made by the SJC.

During the hearing, Justice Bandial noticed that the reference has been filed in the Council and whatever the allegations are in the complaint the SJC has to make inquiry on it.

He said that there is wisdom and logic that inquiry or investigation to be conducted by the SJC. The reason for gradual extraction from the clutches of the executive is that the judiciary hears 80 per cent cases against the actions of the executive, adding that if at any stretch it is conceived that judiciary is under the influence of executive then it will defeat the independence of the judiciary.

Therefore, he said that the SJC is not constituted under Article 175 of the Constitution, while the appointments of superior courts’ judges are made under the same article. He argued that Article 209 is to ensure the term of the Justice Bandial told the counsel that if your stance is that the SJC is the competent forum to conduct investigation against the judges then the petition is not maintainable as the reference is before the Council.

Later, the bench deferred hearing till Tuesday (today) for further proceedings.