By Khalid Hussain —
The full court hearing the constitutional petition by Justice Qazi Faez Isa appeared to be sympathetic to view argued by former Senate Chairman Raza Rabbani that the executive has no power to investigate a judge of the superior court.
The 10-member full court led by Justice Umar Ata Bundial today resumed hearing the Qazi Petition since the last adjournment on December 20 last year. The SJC cannot go behind the process of opinion formation by the President”, Munir A. Malik said while talking to Raza Rabbani inside court room one soon after the hearing of the Qazi Faez Isa Reference Petition ended today. He added, “and that is exactly why we are here”.
Earlier before hearing resumed, three leading lawyers challenging the presidential reference to the Supreme Judicial Council (SJC) were seen exchanging pleasantries and merrily laughing out aloud as counsel for Justice Qazi former Attorney General for Pakistan Munir A. Malik and leading lawyer and former president of the Supreme Court Bar Association Jamshed A. Rizvi chatted former Chairman Senate Raza Rabbani inside court room one.
Raza Rabbani is the author of the 18th Constitutional Amendment to the Constitution of Pakistan and is a respected expert on the constitution and federalism. Representing the premier legal body in the province of Sindh—Sindh Bar Association (SBA)—he submitted the genesis of the constitution and law in Pakistan clearly shows the intent to safeguard the independence of judiciary from transgression by the executive and the legislature.
Tracing the genesis of Articles 48 and 209 of the constitution, Rabbani argued that overtime the progression in law has extracted the judiciary from the clutches of the executive as well as the legislature whose power to impeach and investigate judges of the superior courts have been curtailed by Article 209 as is clear under its various clauses. He showed the role of the President as an adaptive evolution replacing the Queen/Monarch in the Government of India Act, 1935 and argued that the diarchy that earlier obtained has been reduced by successive amendments to the constitution clearing showing the intent of law is to safeguard the independence of judiciary in a parliamentary form of government.
Rabbani stressed Article 209 clearly states “inquiry shall be carried out by the SJC” and argued that this obvious ly means absolutely no one else can carry out an inquiry targeting a judge of the superior judiciary. “How can they intrude now? Even the Parliament was kept away from inquiring and removing member of the judiciary”, he said adding, “if that is allowed then the entire system in question”. He thundered on, “This will bring the edifice of justice crumbling down. It will open the flood gates of chao if FBR and FIA are allowed to investigate judges of the superior courts.
This harked to his earlier summation of facts whereby he underlined the fact of unauthorized proceedings following filing of complaint by one Mr. Dogar with the Chairman Asset Recover Unit (ARU). Rabbani said Chairman ARU meeting with law minister for advice and the advice by the law minister followed by an interview with the complainant by the Chairman ARU that led to his asking for confidential information of a Supreme Court judge from the Federal Bureau of Revenue (FBR) and instructing the Federal Investigations Agency (FIA) to carry out an investigation into the matter, were all illegal and without authority under law.
Judges asked many questions during the course of Rabbani’s more than 90 minutes of succinct arguments that commanded respectful silence in the court. Justices Umar Ata Bundial, Faisal Arab, Mushir Alam and Mansoor Ali Shah all were curious to understand nuances of Article 209 especially its clauses 5 and 6. However, it was distinctly clear that the government side had little sympathy on the Behnch.
“All we need are six judges”, Munir A. Malik said talking to the media inside the court room.
The full court adjourned till tomorrow.
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