President of Pakistan “grossly failed to exercise his discretion as mandated under the Constitution”

The Supreme Court of Pakistan declared that the judicial reference filed against Supreme Court’s Justice Qazi Faez Isa was filed in complete disregard of the law and president of Pakistan “grossly failed to exercise his discretion as mandated under the Constitution and, thus, the entire process built thereon leading to the filing of the Reference was in violation of the law and the Constitution”.

Justice Bandial, who headed a 10-judge full court hearing a set of petitions challenging the filing of the presidential reference against Justice Isa, also observed that there was no authorization for investigating the affairs of Justice Isa by the president and Prime Minister Imran Khan, instead the authorization of Law Minister Dr Farogh Nasim was obtained.

Supreme Court in its judgement said “We would like to record our disapproval of the language used by AG for a judge of the Supreme Court,” Justice Bandial said, adding that since the brazen language was used in the rejoinder and not the reference, it did not form part of the record before the president. As a result, it did not influence the president’s decision to forward the reference to the SJC for inquiry and therefore, being subsequent to the preparation of the reference and its summary, the AG’s remarks could not be said to reveal malice in the filing of the reference, Justice Bandial explained.

He also regretted that former information minister Dr Firdaus Ashiq Awan made contemptuous remarks about Justice Isa in public through a press conference and said an independent contempt proceeding would be initiated against her separately.

About the creation of the Asset Recovery Unit (ARU), the majority judgement declared that there was neither any fatal defect in the creation of the ARU nor was there any unlawfulness in the appointment of Mirza Shahzad Akbar as the special assistant to the prime minister on accountability.

On the covert surveillance of the judges, the majority judgement said the counsel for Justice Isa failed to produce any evidence to demonstrate that either (activities of) his client or his family had been monitored or their communications intercepted.

The judgement however explained that though it was correct to hold that there had been unlawful surveillance and a violation of Article 14(1) of the Constitution in the Benazir Bhutto case, giving the same ruling on the facts of the present case would amount to stretching beyond its ambit.

While taking care to dispel the notion that any public office holder is immune to accountability proceedings, the court observed that unexplained foreign wealth is sure to invite scrutiny under relevant laws.

In their note Justice Faisal Arab said “I have had the privilege to go through the judgment proposed to be delivered by my learned brother Umar Ata Bandial, J and except for my view on Article 48 of the Constitution, Section 116 of Income Tax Ordinance, 2001 and on the plea of mala fide. I respectfully agree with the same. I also intend to add my own reasons in support of the main judgment”.

While elaborating the facts he wrote “The origin of the Reference filed by the President against the Justice Qazi Faiz Esa can be found in the letter dated 10.04.2019, which one Abdul Waheed Dogar, stating himself to be an investigative journalist, wrote to the Chairman, Asset Recovery Unit,Prime Minister’s Secretariat, Islamabad. In this letter, Abdul Waheed Dogar claims that he has laid hands on documentary evidence showing three Judges, including the petitioner, own properties abroad in the names of their relatives”.

In another note Justice Yahya Afridi wrote that he is agreed with Justice Umar Ata Bandial to the extent of declaring the Presidential Reference filed against Mr Justice Qazi Feaz Isa to be without lawful authority. However, on the grounds to declare the same and on certain crucial issues dilated upon he differs.