Observer Report
Islamabad
Munir A. Malik, the counsel for Justice Qazi Faez Isa, on Monday pleaded the Supreme Court to order President Arif Alvi, Prime Minister Imran Khan and Federal Minister for Law and Justice Farogh Naseem to join a case pertaining to a presidential reference against Justice Isa. The counsel told the full court, consisting of 10 Supreme Court judges and headed by Justice Umar Ata Bandial, that the president, “instead of applying his mind to the reference”, acted upon the advice of the prime minister in violation of the Constitution. The remark was made while the court hears multiple petitions against a presidential reference against Justice Isa.
The reference filed against Justice Isa alleges that he acquired three properties in London on lease in the name of his wife and children between 2011 and 2015, but did not disclose them in his wealth returns. Justice Isa has contested the allegation, saying he is not a beneficial owner of the flats — neither directly nor indirectly. “The president took an unconstitutional step while not using his Constitutional power,” Justice Isa’s counsel said, adding that the president has already “confessed” to acting upon the advice of the prime minister.
The counsel, while delivering his arguments, reiterated that the reference was based on “mala fide intentions”. The counsel said that the three office holders should be made part of the proceedings because it was necessary to make all accused of mala fide intentions behind the reference a party in the case. He also repeated another objection that the reference was filed without approval from the federal cabinet.
The counsel argued that although, under Article 248, the prime minister and ministers can not be made answerable to any court, they are bound to act in accordance with the Constitution and the law. He added that therefore there is no impunity for anyone who takes unconstitutional and illegal steps. When asked to point out the mala fide intentions ‘apparent’ in the reference, he said the president’s decision to act upon the prime minister’s advice was ‘unconstitutional’.
During the hearing, Justice Faisal Arab asked if it was mentioned in the reference that the president has not applied his mind to the reference? Justice Manzoor Ali Shah asked whether “applying the mind” mean that all evidence in the reference should be collected under supervision of the president? The judge also questioned that under which law the material against Justice Isa was collected.
Munir A. Malik argued that the president should have “applied his mind” to know how the material was collected. Talking about the scope of the apex court and the Supreme Judicial Council, the counsel said that the SJC was bound to hear the reference. It cannot review the aspect of intentions, he added.
