ISLAMABAD: Supreme Court on Thursday wondered how can a reference based on “false legal advice” be filed against its judges as the full-court bench resumed hearing in the presidential reference against Justice Qazi Faez Isa which accuses the judge of concealing his offshore assets.
As the hearing went underway, Justice Umar Ata Bandial noticed that the Money Laundering (Amendment) Act, which became law in 2015, cannot be applied to a case that dates back to 2013.
“How can the president and prime minister approve a reference based on ‘false legal advice’, Justice Muneeb Akhtar asked.
“[We are] telling you leniently that this [legal] mistake can have serious implications.”
Justice Mansoor Ali Shah noted that the federal government’s counsel also failed to explain from where does the Assets Recovery Unit (ARU) draws its authority to question a judge.
Justice Bandial pointed out that the case cannot be categorised under Article 209 of the Constitution which outlines the functions of the Supreme Judicial Council (SJC). To which, Barrister Farigh Naseem responded: “Yes, you are absolutely right, but the SJC has issued a show-cause notice.”
The prosecutor said that the federal government only forwarded the verified information to the SJC to conduct a probe into the matter.
Justice Shah noticed that the court’s question seeking information on the number of public office holders facing legal action on a similar ground went unanswered. Naseem replied that he has made a note of the question.
The federal government in May last year filed separate references with the Supreme Judicial Council (SJC) against two Supreme Court judges, Justice Isa and Justice Karim Khan Agha, accusing the two judges of concealing their assets and recommend action against them under Article 209 of the Constitution.
According to Article 209, if the SJC finds the judge to be “incapable of performing the duties of his office or has been guilty of misconduct”, the president may remove the said judge from office.
Subsequently in August, Justice Isa approached the apex court and requested it to form a full-court bench comprising all eligible judges to hear his petition against the reference while accusing then chief justice of Pakistan Asif Saeed Khosa of “showing personal bias against him”.
He had argued that a judicial precedent for constituting a bench comprising the full court is already available in former chief justice Iftikhar Chaudhry vs the president of Pakistan through secretary and others.
Later in September, he moved another petition making a similar request. The judge was of the view that matters narrated in accompanying civil miscellaneous application dated August 26 – “which may for the sake of brevity be read as a part hereof” – demonstrates the necessity for hearing by such a full-court bench.
“The petition also raises a number of important constitutional questions, including that of the independence of the judiciary, the formation of an independent opinion by the president, obtaining federal cabinet’s approval and other vital issues of surveillance, and the manner and method of collecting evidence against a judge of the Supreme Court and his family,” he had said.