ISLAMABAD: Justice Umar Ata Bandial has said that the sinister inference which one can draw from the presidential reference against a sitting judge of the Supreme Court will not only hurt this judge but also the entire institution of the judiciary.

Justice Bandial passed these remarks while heading a full-court SC bench which heard a set of petitions challenging the presidential reference against Justice Qazi Faez Isa of the SC on Tuesday.

“We know that he (Justice Isa) is not a person who steals money from people, but the other side (government) has accused him of dishonestly acquiring three properties during his tenure as the chief justice of the Balochistan High Court (BHC),” observed Justice Bandial.

Could the apex court ignore such allegations and push them under the carpet, he said while pointing towards Justice Isa’s counsel Munir A. Malik, asking him to state if the allegations against the judge were true or false.

Terming the allegations disputed, the counsel said the properties mentioned in the reference had no bearing on Justice Isa as they were owned by his children who were not his dependents.

Says apex court cannot ignore allegations against sitting judge

He requested the court to send a rejoinder to the federal government, asking it to put the allegations against the judge on record. He said he would come up with a proper answer after reading that document and seeking instructions from his client.

“I will burn the midnight oil,” he said, adding, “I am not running away.” What were the compelling reasons to show urgency in the case which was not an ordinary one, he asked. The whole judiciary was on trial and eyes of the whole nation were on this case, he said.

Mr Malik was of the opinion that some judgements of Justice Isa had become the basis of a deliberate campaign which was designed to punish him.

The reference was intended to harass a Supreme Court judge, the counsel emphasised and questioned, could Article 209 of the constitution — which deals with Supreme Judicial Council (SJC) — be ostensibly used to punish the superior court judge.

Referring to the response filed on behalf of the Supreme Judicial Council (SJC) by the attorney general (AG), Mr Malik asked: was the AG representing the SJC.

Justice Bandial conceded that the matter at hand had the potential to erode the confidence of people in this institution. But, he added, the bench had a deadline and it could not prolong the case because one of its members would not be available after two weeks.

He made it clear that neither the court would exonerate the judge, nor condemn constitutional functionaries, like the president or the prime minister, especially when the facts of the case at hand were totally different from the 2010 case of former chief justice of Pakistan Iftikhar Muhammad Chaudhry.

“The SJC is the highest constitutional body in the country and we should maintain decorum and respect all constitutional functionaries since they are impartial and have no motives behind moving the reference,” he said.

“This is not the case where a judge has been suspended, detained or put under house arrest,” Justice Bandial explained. He, however, conceded that the allegation of surveillance of Justice Isa and his family was a new point.

He said the full court needed to proceed faster since the roster of the apex court was suffering because of the constitution of the 10-judge bench for this case.

Mr Malik argued that the federal government was hiding the fact that the mover of the second reference against Justice Isa which eventually got rejected by the SJC was in fact a proxy and, therefore, the Supreme Court should strike down the reference for being mala fide for the sake of the independence of the judiciary. “That is why I am requesting the court to hear me after the rejoinder on the part of the federal government is submitted,” the counsel contended.

Attorney General Anwar Mansoor assured the court that the government’s reply was ready and would be submitted in the court by Wednesday. He explained that the government’s reply covered almost all salient features raised by other the petitioners.

At the outset of Tuesday’s proceedings, Justice Bandial observed that the court intended to take up the maintainability of the petition first, especially in view of the ouster clause in Article 211 of the Constitution. Besides, there were certain judgements in this regard, he observed, explaining that the idea was to proceed expeditiously.

Justice Bandial admitted that the response on the part of the government was necessary.

The court then postponed further proceedings in the case for Monday though it initially wanted to adjourn the case for Thursday.

At one point Justice Bandial while pointing towards the AG observed that this all happened because of the late filing of the government response and that this should not be repeated again.

Published in Dawn, October 9th, 2019