ISLAMABAD: The federal government requested the Supreme Court on Tuesday to reject Justice Qazi Faez Isa’s challenge to the filing of a reference against him since it was filed in a lawful manner and did not in any way undermine the independence of the judiciary.

A 45-page rejoinder, furnished by the government through Attorney General Anwar Mansoor in response to the petition, argued that the process of accountability of judges by their own peers enhanced the independence of the judiciary and President Arif Alvi had moved the reference in exercise of his constitutional duties under Article 209(5) of the Constitution.

The rejoinder emphasised that the reference against Justice Faez Isa of the Supreme Court was moved without any mala fide intention, malice or ulterior motives or to achieve any collateral purposes. It argued that the filing of the reference by the president after forming an opinion on the advice of the prime minister could not be inquired into under Article 48(4) of the Constitution by the Supreme Court.

Says presidential reference filed after forming opinion on PM’s advice cannot be inquired into by apex court under Article 48(4)

The very premise of the presidential reference, the reply explained, was a ‘benami’ nature of the properties abroad which were concealed and not disclosed as required by the law. Moreover, the wife and children of the petitioner judge had no independent source of income and were not in a position to provide funds necessary for the purchase of three properties when they were bought.

Resultantly, the only and inescapable conclusion which could be drawn was that the London properties in question were benami in nature and the petitioner judge was the ostensible owner of these properties, the reply alleged.

It said the presidential reference was not a civil suit but a directive to hold an inquiry into the conduct of the petitioner, adding that it was also incorrect to say that the Supreme Judicial Council (SJC) had assumed the role of the Federal Board of Revenue. The only question which the SJC was inquiring into was whether the petitioner had been guilty of financial impropriety in the purchase of these properties, the reply said, alleging that the petitioner was trying to wriggle out from the inquiry proceedings initiated on the presidential reference on account of existence of undisclosed properties in the constructive possession and ownership of the petitioner on flimsy grounds.

Moreover, it said, the petitioner judge by filing the current petition was trying to politicise the issue so that an inquiry, a constitutional obligation of the SJC, could not be conducted. The fact that the petitioner judge was a tax filer and paid substantial amount of income tax did not in any way prove that the properties in the UK were not owned by him, the reply argued. “Thus, the only way the petitioner judge can deny the ownership of the properties is to establish independent source of income of his wife and children and by disclosing their financial position at the time of purchase of the properties,” it said.

The reply denied that the reference in anyway destroyed the independence of the judiciary or made it subservient to the executive or amounted to subverting the Constitution. All actions are in accordance with the command of the Constitution and that the reference has been sent to the peers of the petitioner judge for inquiry and nothing else. It contended that the judges could not be equated with ordinary mortal human beings since they were required to possess highest quality of intellect and depict sterling character.

“The accountability process is to keep the stream of justice pure and unsullied so that the confidence of the people in the judiciary remains intact,” the reply explained, adding that it was for the independence of the judiciary that the framers of the Constitution decided to constitute a constitutional body comprising senior-most judges of the Supreme Court and of high courts to conduct accountability of their own peers.

The reply said the petitioner judge had raised factual controversies, which could not be decided in the original constitutional jurisdiction of the Supreme Court. “When the factual position as presented is not admitted, it would require recording of voluminous evidence under Article 10A of the Constitution to arrive at a just and proper conclusion. Such exercise cannot be carried out in the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution,” the reply said.

Moreover, it said, the jurisdiction under Article 184(3) of the Constitution was a qualified jurisdiction which required that a question should be of public importance regarding violation of the fundamental rights.

Published in Dawn, October 9th, 2019