ISLAMABAD: A day ahead of the scheduled hearing by the Supreme Court of the challenges to the presidential reference against Justice Qazi Faez Isa, Attorney General Anwar Mansoor highlighted that the Supreme Judicial Council (SJC) was immune from any judicial review.
At the last hearing on Sept 24, a 10-judge SC bench had also raised a similar question for determination by asking if the proceedings pending before the SJC could be called in question before courts under Article 211 of the Constitution.
The full court headed by Justice Umar Ata Bandial, which will resume the hearing of the reference on Tuesday (today), had also issued notices to the respondents named in the petition, including President Arif Alvi, Prime Minister Imran Khan and the SJC. The full court is seized with a set of petitions challenging the filing of the presidential reference against Justice Faez Isa of the Supreme Court.
On Monday, Attorney General Mansoor and SJC Secretary Arbab Mohammad Arif furnished their replies before the Supreme Court.
In his statement filed through Additional Attorney General Chaudhry Aamir Rehman, AG Mansoor explained that the stance of the SJC in relation to the present case was non-adversarial, fully impartial and entirely non-partisan. Since the SJC has been impleaded as a party in the present case, the reply said, it was necessary to highlight that proceedings before the council were immune from the judicial review by virtue of provisions contained in Article 211 of the Constitution.
As held in a 1971 report, titled the President versus Justice Shaukat Ali, the function of the SJC was to properly review the conduct of a judge in the interest of purity and honour of the judiciary, it added.
“It is an inquiry by one’s own peers and it provides protection because they understand one’s difficulties, problems and the situation the judge is in,” the AG said while explaining the probe before the SJC against a superior court judge.
“The judicial independence and the judicial accountability are the two sides of the same coin, where the former ensures rule of law, very essence of democracy, and the latter establishes public confidence in the judiciary, which means public confidence in the ethical standards of a judge,” he argued.
Therefore, Mr Mansoor said, the composition of the council, the nature of inquiry it had to conduct and the high constitutional position of the council of the process whose conduct was inquired into were the consideration that led the framers of the Constitution to oust the jurisdiction of the Supreme Court to judicially review the proceedings before the SJC.
The inquiry into the conduct of a judge upon a reference filed by the president was an inviolable constitutional obligation of the SJC in view of provisions of Article 5 of the Constitution, read with the oath of office sworn by the Chairman (Chief Justice Asif Saeed Khosa) and members of the council and the code of conduct prescribed for judges of the superior judiciary.
The AG’s reply, however, denied the allegations levelled against the SJC, its chairman and members. It also denied assertions of illegality, irregularity and impropriety allegedly committed by the council in the proceedings with the special reference.
In his reply, SJC Secretary Arbab Arif said that he held all judges of the superior judiciary in the highest esteem and sincerely believed that the judges were worthy of the honour and respect bestowed upon them by the Constitution.
He said it was also unimaginable and unthinkable on his part to undermine such honour and respect, adding that he had always conducted himself with rectitude, integrity and honesty, acted in good faith and performed all his duties in accordance with the law.
Mr Arif denied that during the course of proceedings in the reference, he in his capacity as SJC secretary had committed any procedural irregularity or illegality, shown bias or prejudice, acted with mala fide, caused discrimination, engaged in persecution and depicted double standards or unreasonable conduct.
He said that being the SJC secretary he had also not exceeded his authority, shown bitterness or collusion, violated the Constitution and worked in tandem with the government to deprive the petitioner (Justice Isa) of his lawful rights.
Published in Dawn, October 8th, 2019