ISLAMABAD - The Supreme Court of Pakistan was Wednesday informed that 18th constitutional amendment retained President in Article 209 (5) so he act buffer between political government and the judiciary.

Bilal Manto, representing Abid Hassan Manto and I A Rehman, said this before a 10-member bench of the apex court headed by Justice Umar Ata Bandial which conducted hearing of 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 & Association of Punjab, Sindh and Balochistan and Abid Hassan Minto, and I A Rehman have also challenged the Presidential Reference against Justice Qazi Faez Isa.

Bilal Manto adopted before the court that the President is expected to be independent and neutral. All complaints for inquiry against the judge of the superior court have to come from the President and they cannot be sent direct to the Supreme Judicial Council (SJC).

He said that the President has to form an independent opinion before sending the reference to the Council adding that the if President is not in Article 209 then anyone can send the complaint to the SJC, which would burden the Council.

The counsel argued that the President can order the authorities for collecting of material in support of the complaint and not to verify the complaint.

During the proceeding, Pakistan Bar Council (PBC) counsel informed the bench that it came to his knowledge that there was report in media last week the petitioner’s [Justice Faez] wife approached the FBR in order to obtain information about the income tax return file, which was transferred from Karachi to Islamabad. However, the FBR officials were not cooperative to her.

The bench therefore ordered the Additional Attorney General for Pakistan to provide information, after verification, that Federal Board of Revenue (FBR) did not extend assistance to Justice Qazi Faez spouse about transfer of her income tax return file from Karachi to Islamabad.

Salman Akram Raja contended that the President should have sought response of Justice’s wife and children regarding the properties, which are in their names.

Raja added that the dignity of the judge, his wife has been violated. He said the Council is fact finding body and has to form opinion and the recommendation to the President on the basis of the fact. He said that the SJC is not court therefore the judicial review would lay before this court.

Earlier, Rasheed Rizvi argued that Wasim Akhtar, the incumbent Karachi mayor, had confessed issuing orders for closure of roads in Karachi on May 12, 2007, and seeing the judges entering Sindh High Court scaling the walls.

He further said that Barrister Farogh Naseem, the current law and justice minister in Prime Minister Imran Khan administration, was advocate general Sindh when the gory incident of May 12 took place in 2007.

This prompted Justice Bandial to shed light on what happened on November 3, 2007, to which, Advocate Rizvi said that it was another black day like May 12, 2007.

 On this Justice Bandial said that now there exists a rule of law in the country, but Rizvi disagreed with him and said it is the lingering dispute of May 12, for which now the scores are being settled.

Justice Bandial said that deviation from the Constitution always results in such unfortunate incidents. 

Initiating his arguments, the counsel for Pakistan Bar Council (PBC) Salman Akram Raja said Asset Recovery Unit (ARU) collected evidence by violating the protection given to a judge in the Constitution.

 

Under the law, he said, the ARU could not collect evidence against a judge without prior permission from the President of Pakistan, adding the ARU was bound to present the evidence before the President. 

 

He said that judges of superior courts could not be made accused through such inquiries, as evidence was collected against the judges of superior court through the ARU.

 

Justice Bandial said that in 2010, Justice Iftikhar Muhammad Cahudhry case guidelines are not applicable on executive; hence, this court cannot give final guideline to the executive and the Supreme Judicial Council.

 

He said that it is already decided that the executive will have to follow these guidelines.