ISLAMABAD: The Supreme Court of Pakistan on Tuesday issued notices to the president and the prime minister who are among the many respondents in a set of petitions filed against the filing of a presidential reference against Justice Qazi Faez Isa.

Headed by Justice Umar Ata Bandial, the full court hearing a set of petitions against the filing of the presidential reference against Justice Isa observed during Tuesday’s brief proceedings that the question whether the president and the prime minister could be implicated as a party in the petitions challenging the reference against a sitting judge when both enjoyed constitutional immunity, needed to be examined.

Justice Bandial made these observations after consulting fellow judges except for Justice Syed Mansoor Ali Shah who could not attend the hearing because he was abroad.

The court issued notices to the respondents in the petitions with the observation that the points highlighted in the petitions deserved consideration and it was a good case to issue notices to the respondents.

Next hearing will be on Oct 8

Moved by Justice Isa, one of the petitioner, has named as respondents President Arif Alvi, federal government through secretary law, Prime Minister Imran Khan, Law Minister Muhammad Farogh Nasim, Attorney General (AG), the Supreme Judicial Council (SJC), SJC Secretary Arbab Muhammad Arif, Assets Recovery Unit (ARU) Chairman Mirza Shahzad Akbar, Legal Expert of ARU Ziaul Mustafa Nasim, Pakistan Bar Council and Supreme Court Bar Association and others.

The court also sought the federal government’s response to the points raised in the petitions before postponing further proceedings on Oct 8.

The court also noted that the common ground of attack of all the petitioners including the sitting judge against the presidential reference was mala fide of facts and law based on principle laid down by the Supreme Court in 2010 Iftikhar Muhammad Chaudhry’s case.

According to Article 248 of the Constitution, the president, governor, prime minister, federal ministers or ministers of state and chief minister and provincial ministers will not be answerable to any court for the exercise of powers and performance of functions of their respective office or for any act done or purported to be done in the exercise of those powers and performance of those functions.

Likewise, Article 211 of the Constitution says proceedings before the Supreme Judicial Council (SJC), its report to the president and the removal of a judge under Article 209 (6) of the Constitution cannot be called into question in any court.

But senior counsel Rasheed A. Razvi, representing Sindh High Court Bar Association before the Supreme Court, told Dawn that the SC in 2010 former chief justice Iftikhar Muhammad Chaudhry case had already answered the question by explaining that though the court respects the ouster clauses wherever they occur in the Constitution or in any other law, it was on account of the same respect that this court (Supreme Court) would interpret such clauses as not extending immunity to acts which were coram non judice (illegal from the beginning) or which were taken mala fide or the ones which had been done without jurisdiction.

During Tuesday’s hearing, Justice Bandial said the matter at hand was a case of anxiety not only for the bar but for the bench as well, but the court will act according to the law and the Constitution. “This is a very important case and we have no intention to linger over the matter,” he said.

The court also asked Attorney General (AG) Anwar Mansoor to assist it in the matter. But Additional Attorney General Chaudhry Aamir Rehman questioned whether the AG could provide assistance to the court when he himself had been made a respondent in the petitions for pleading the case of the federal government before SJC.

Published in Dawn, September 25th, 2019