ISLAMABAD: The senior counsel pleading Justice Qazi Faez Isa’s petition before the Supreme Court argued emphatically on Monday that the last straw had been the “inconvenient truths and observations” made in the Feb 6, 2019, TLP dharna verdict that triggered the filing of the presidential reference.

Advocate Muneer A. Malik cited the contentions of a few of the review petitions, from a total of eight, that were filed in March 2019 — all seeking to recall strong observations in the dharna judgement authored by Justice Isa.

The counsel also read out the strongly worded dharna judgement in which the defence ministry, and the respective chiefs of the branches of the armed forces, were directed to penalise personnel under their command found to have violated their oath. That judgement had presented the reminder that the Constitution emphatically prohibits members of the armed forces from engaging in any kind of political activity. Not only the language but even paragraphs in the separate petitions moved by the Pakistan Tehreek-i-Insaf and its partner in the ruling coalition Muttahida Qaumio Movement were identical, the counsel argued.

Ten-judge full court bench of SC hears petitions against reference

When Justice Umar Ata Bandial, who was heading the 10-judge full court bench hearing petitions against the filing of the reference, reminded the counsel to be careful in whatever he said about the pending review petitions as these were sub judice, the counsel said that the dharna judgement might be ‘exceptional or unexceptional’ but it reflected what the Supreme Court was saying.

Justice Muneeb Akhtar inquired from the counsel what the contentions were that he highlighted had been mentioned in the re-filed PTI review petition. The counsel explained that the petition had initially been returned by the court office due to its language, yet the MQM petition — which struck harsher notes — had not been returned: “What I am trying to establish is the mindset and that both coalition partners used identical language, that suggests a coordinated effort to allege misconduct on the part of the judge,” said Mr Malik.

“We cannot read into the minds of the people, and therefore let these review petitions be adjudicated upon,” Justice Bandial observed.

“What were they pursuing through the review petitions,” Justice Mansoor Ali Shah asked. “That Justice Isa should not sit on the bench when these review petitions will be taken up, inferring that he was not fit to sit on the bench,” replied the counsel.

“Justice Isa will be on the bench,” Justice Bandial said, adding that the recusal of a judge from the bench was not something easy to enforce upon a Supreme Court judge.

“These petitions have been pending for the last seven months,” the counsel recalled, adding that the PTI was headed by Prime Minister Imran Khan and Law Minister Farogh Naseem was a member of the MQM — perhaps both have a “similar state of mind”. The judgement in the dharna case was rendered by two judges, the counsel argued, but only the author was being singled out.

Perhaps they [the PTI and the MQM] exchanged drafts of the review petitions, observed Justice Faisal Arab. But the counsel retorted that not only were the contents similar but the font as well as the computers too were the same.

Monday’s proceedings commenced with an unpleasant incident when a little known lawyer from Lahore, Ajmal Mehmood, occupied the rostrum and demanded that the presiding judge not sit on the bench until a reference he had filed before the Supreme Judicial Council (SJC) against him be decided. When asked politely to take his seat, he shouted that no one was listening to him.

At this, Justice Baqar cautioned the lawyer that he was exposing himself to contempt of court. The court then asked the president of the Supreme Court Bar Association (SCBA), Amanullah Kanrani, to remove the gentleman from the rostrum.

Eventually, Justice Bandial explained that “we have inquired from the SJC about the fate of the reference, which was filed on July 5, 2017, and rejected the same year.”

Before taking the rostrum, Mr Malik assured the court that the petitioner had nothing to do with this episode. “It is our duty to dispel the impression that Supreme Court judges ... will ever compromise,” he said.

On the issue of flats in the UK, the counsel emphasised that one was purchased by his wife in 2004, well before Justice Isa joined the judiciary, while the other two were bought in 2013 by his son and daughter respectively in their mother’s name. The counsel recalled that his client, being a judge of the apex court, had the constitutional expectation to don the robes of the chief justice of Pakistan some day; but since May 28, 2019, his reputation and that of his family was being attacked. The Assets Recovery Unit had become active, while his client, Mr Malik said, was unable to defend himself.

Published in Dawn, October 15th, 2019