ISLAMABAD: The Pakistan Bar Council (PBC) on Saturday welcomed the Supreme Court’s detailed judgement and reasons explained in it on the basis of which it had quashed the presidential reference against Justice Qazi Faez Isa.
The PBC, mother institution regulating affairs of the legal fraternity, also called for immediate resignations of President Arif Alvi, Law Minister Dr Farogh Naseem and Special Assistant to the Prime Minister on Accountability Mirza Shahzad Akbar.
A statement issued jointly by PBC vice chairman Abid Saqi and chairman of its Executive Committee Azam Nazeer Tarar said that bar leaders demanded immediate resignation from the president, who sent the reference to the Supreme Judicial Council (SJC) without thorough consideration and application of his mind that was the constitutional requirement. They also called for resignation of Dr Naseem and Mr Akbar, who also heads the Assets Recovery Unit (ARU), claiming that they were mastermind of initiating an inquiry and preparing the reference against Justice Isa. They alleged that these two men had attempted to bring a bad name to judiciary.
The statement said the observations and reasons given by the Supreme Court in its detailed judgement clearly proved that the constitutional violations, illegalities and mala fide of the government and its functionaries in filing the politically motivated reference against Justice Isa which had rightly been quashed by the apex court.
It said the legal fraternity welcomed the detailed judgement even though it did not order any action against the government, its ministers and other officials who in fact were responsible for filing of the reference aiming at pressurising and causing disrepute to the sacred institution of judiciary.
Demands resignations of president, law minister, PM aide on accountability
The statement dropped hints that the PBC would further add submissions in its in review petition that it had filed earlier, seeking removal of paragraphs 3 to 11 in the June 19 short order by the ten-judge full court of the Supreme Court headed by Justice Umar Ata Bandial.
The PBC as well as a number of bar associations, including the Supreme Court Bar Association, had moved review petitions before the Supreme Court, arguing that the directions/observations or contents of paragraphs 3 to 11 were unnecessary, superfluous, contradictory, excessive and unlawful and thus liable to be deleted since they constituted mistake and error apparent on the face of the record and were thus liable to be reviewed and deleted.
The majority order by seven judges through paragraphs 3 to 11 in the short order had quashed the reference, but ordered the Federal Board of Revenue chairman to furnish a report under his signatures to the secretary of the Supreme Judicial Council (SJC) containing details of proceedings conducted by the commissioner inland revenue after seeking explanation from the wife and children of Justice Isa about the nature and source of funds for the purchase of three properties in the United Kingdom. On the receipt of the report, the SJC may determine to initiate any action/proceedings for the purposes of Article 209 of the Constitution, in its suo motu jurisdiction, the judgement had explained.
Legal and procedural defects
In another statement issued on Saturday, the PBC said it was satisfied with the observations made in the judgement, particularly that the presidential reference was tainted with mala fide and about the president’s failure to form his considered opinion under Article 209(5) of the Constitution while filing the reference after independent application of mind as he did not get fair and objective advice from a third party on the question of law noted in the reference and thus failed to notice its legal and procedural defects.
The PBC highlighted that the president formed his opinion on the reference on the basis of “inadmissible advice” obtained from the law minister and the former attorney general of Pakistan — both of whom were involved in preparation of the reference against Justice Isa.
Likewise, the reasons also stated that the reference was based on the illegal access to tax record of the judge without any valid authorisation for the investigation by the president or the prime minister.
Similarly, the judgement also stated that there was neither any evidence nor the nomination of a predicate offence in the reference to support the allegation of money laundering against the judge and that there was no evidence that he had violated the regime under the Foreign Exchange Regulation Act (FERA), 1947.
The judgement also stated that the actions of the respondents (government functionaries) had violated not only the constitution, the rules of business and the provisions of Anti-Money Laundering Act, but had also ignored the laid down law which specifically set out certain safeguards to protect the superior courts judges from arbitrary actions of the executive; and that the allegations against the petitioner judge of violating the provisions of the FERA was “an unsubstantiated assumption neither backed by evidence nor supported by relevant rule, that was allegedly breached”.
Published in Dawn, October 25th, 2020