Updates of judges inquiries

[ghazi52]

CJP orders new 10-member bench to hear Justice Isa's petition against presidential reference

September 20, 2019

Supreme Court's Justice Qazi Faez Isa. — Photo Courtesy SC website
Chief Justice of Pakistan Asif Saeed Khosa on Friday ordered the formation of a full 10-member bench for the hearing of Supreme Court judge Qazi Faez Isa's petition regarding the presidential reference instituted against him.

Headed by Justice Umar Ata Bandial, the 10-member bench will conduct a hearing on Justice Isa's petition on September 24 at 1pm.

The new bench will also include Justice Maqbool Baqir, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi and Justice Qazi Ameen Ahmed.

Earlier, Justice Isa had objected to a seven-member bench hearing the reference and had filed a petition requesting the formation of a new, full bench along with an expedient hearing to address his petition.

A reference had been instituted in May this year against Justice Isa, accusing the judge of concealing his properties in the United Kingdom allegedly held in the name of his wife and children. After news of the reference hit TV screens, the judge wrote multiple letters to President Arif Alvi, asking him to confirm whether the reports were true.

Subsequently, another reference was filed by a lawyer from Lahore over the judge’s act of writing to and seeking information from the president, accusing him of violating the code of conduct for judges.

The Supreme Judicial Council (SJC), however, quashed the second reference as it did not find the matter "serious or grave enough to constitute misconduct sufficient for his [Justice Isa's] removal from the exalted office of a judge of the Supreme Court".

 

[ghazi52]

Three suspects released in video leak case to face trial

September 26, 2019

File
ISLAMABAD: The three suspects released by the judicial magistrate of Islamabad in the judge’s video leak case have to face trial as a cybercrimes court has ruled that the order for their discharge from the case “does not amount to acquittal”.

Nasir Janjua, Mahar Ghulam Jilani and Khurram Yousaf have been accused of pressurising former accountability court judge Arshad Malik to acquit former prime minister Nawaz Sharif after showing him his immoral video.

Four officials of the Federal Investigation Agency’s (FIA) cybercrimes wing had on Sept 2 arrested the suspects, but the investigation team concluded that they were not involved in the crime. Subsequently, judicial magistrate Saqib Jawad had ordered their release.

However, the judge of the prevention of electronic crime court in the order sheet declared that “the discharge order of Sept 7, 2019, of the three accused is an administrative order and does not amount to acquittal”. The judge directed the prosecution to proceed in the case against the suspects.

Judge Arshad Malik, who was suspended over the video leak controversy, had on Sept 11 filed a complaint against the four FIA officials — cybercrimes wing director Afzal Mehmood Butt, assistant directors Kaleemullah Tarrar and Farooq Latif and sub-inspector Fazal Mahboob — over poor investigation.

The FIA had on Sept 23 informed the cybercrimes court that the FIA director general not only transferred the inquiry from the cybercrimes wing to the counterterrorism wing but disciplinary proceedings had also been initiated against the agency’s four officers.

Legal experts, however, point out that Section 8 of the FIA Act 1973 provides indemnity to its officials for “exercising any power to perform any function”.

 

[ghazi52]

Judge Arshad Malik, who didn’t join probe, levels fresh allegations

ISLAMABAD: In a shocking move, Judge Arshad Malik has claimed through an application that the Federal Investigation Agency’s probe team and key accused had wilfully established a nexus to destroy his video scandal case.

The FIA team conducted an extremely shady investigation where the three key accused got a "clean chit" from the judicial magistrate. “I have just come to know, to my shock and dismay that instead of objective, independent, professional and thorough investigation, theinvolvement of three accused in the commission of (or aiding or abetting the commission of) offences disclosed by the contents of the FIR, the members of the investigation team, obviously and patently, acting in collusion with the said three accused, submitted an application ostensibly under Section 169 PrPC in the court. Nasir Janjua, Ghulam Jilani and Khurram Yousaf were neither found involved in making audio or immoral video of complainant judge Arshad Malik nor have publicly exhibited, displayed and transmitted,” judge Arshad Malik wrote in his application submitted to Director General FIA Bashir Memon.

"The discharge and release of three accused [Nasir Janjua, Ghulam Jilani and Khurram Yousaf] named in Paragraph No I hereof caused and obtained solely on the basis and on account of the section 169 CrPC Application submitted through the two members of investigation team is unlawful, erroneous and contrary to and violative of my rights as complainant and also appears to be tainted by mala fides of and collusion between the members of investigation team and three accused in question," added the application, exclusively made available to this correspondent.

The development came at a time when DG FIA Bashir Memon has gone on long leave and the new FIA team headed by Babar Bakht is going to submit its fresh report on the case to the Cyber Crime Court Islamabad on Monday (today).

Judge Arshad Malik, who is an OSD now, further wrote in his application, “It is apparent from a bare perusal of the section 169 CrPC application that specific details of the manner and scope of the investigation carried out by the investigation team was not shared with and explained to the learned judicial magistrate Islamabad, which was an essential pre-requisite, before procuring the release of the three accused in question.

It is also apparent that the undersigned being complainant was neither taken into confidence nor provided any prior notice or any opportunity to comment on the proposed filing of the section 169 CrPC application, which is patent violation of the fundamental rights of the undersigned and his legally enforceable rights qua complainant.”

Judge Arshad Malik, who did not appear before FIA team despite repeatedly served notices as sources told this correspondent, wrote in his application that section 169 CrPC application was prepared and moved surreptitiously and the decision to seek release of the three accused in question was concealed from the undersigned (qua complainant) intentionally and so as to unduly and unlawfully favour the said three accused.

“The intentionally misleading contents of and improper motive behind the section 169 CrPC application is also established by the statement therein that, during investigation Nasir Janjua, Ghulam Jilani and Khurram Yousaf were neither found involved in making of audio or immoral video of complainant judge Arshad Malik nor have publicly exhibited, displayed and transmitted, as this particular charge and allegation has been attributed to other accused in the FIR and a different role and involvement has been expressly attributed to the three accused,” stated judge Malik’s application submitted to DG FIA days after the accused were released by the magistrate.

The judge further claimed that the investigation team failed to conduct a proper, objective and comprehensive investigation into the real questions and issues arising from and in his complaint and also failed to duly and properly interrogate the three accused with reference to the specific role attributed to them in the FIR. It is apparent that the investigation team has simply accepted the verbal denial and orally taken version and stance of three accused without any critical analysis or any other corroborating evidence or substantiating material which is against the basic norms of investigation in such matters and which it is submitted also betrays the bias of the members of the investigation team in favour of the three accused,” he added.

His said his application discloses the commission of serious offences including inter alia, blackmail, criminal intimation as well as an underlying concerted conspiracy to interfere with the administration of criminal justice by employing the subjective video as a basis.

“However, the investigation team by apparently simply accepting the oral denial of the individuals has failed to perform its duties and functions in accordance with law and as a result thereof the fundamental rights of the undersigned complaint have been violated. Additionally, my [judge’s] legal right to seek prosecution of all involved in the offense arising from the contents of the FIR has been unlawfully and unreasonably stifled, all with the object of unduly favouring persons nominated in the FIR itself, the contents of which are hereby reiterated and reaffirmed by the judge. The judge said he had lost all confidence in the investigation team consisting of Afzal Mahmood Butt, Fazal Maabd and Farooq Latif.

 

[ghazi52]

SC larger bench for early hearing of 17 petitions challenging presidential reference against Justice Isa
October 08, 2019

Justice Qazi Faez Isa.— Photo courtesy of the SC
A 10-member larger bench of the Supreme Court — led by Justice Umar Ata Bandial — on Tuesday turned down a plea by the counsel of Justice Qazi Faez Isa seeking deferment of the hearing of his petition against a presidential reference for two weeks; instead adjourning the hearing till October 14.

The larger bench had today resumed hearing a set of 17 petitions challenging the presidential reference against Justice Isa. Justice Bandial, while turning down the plea, said that a member of the bench has to travel out of the country after two weeks.

Justice Bandial said that for now the court is only listening to the arguments surrounding maintainability of the petitions.

Attorney General Anwar Mansoor today also submitted his reply to the petition filed by Justice Isa. The court directed the attorney general to provide a copy of his reply to all petitioners in the case.

Munir A. Malik — the counsel for Justice Isa — argued in court that while the petition says that allegations against his client were based on malafide intentions, there was no mention of the point in the reply to the petition.

Justice Bandial reminded Malik that the case had already been deferred because of his illness. He added that two judges had also detached themselves from the bench because of the petitioner's objections. "This was a painful process," he said.

Justice Bandial noted that the case is one of its kind. Munir responded that the case is a trial of the entire judiciary.

Justice Bandial further said, "The matter is also important for this institution [judiciary], [so] we have to examine the record produced in the court."

Malik argued that the judge and his family members were spied upon. "A campaign was launched against my client," he said.

Justice Bandial asked the counsel to elaborate his allegation with the help of the background of the case.

Malik responded that his client had passed a verdict which was disliked. "Following the decision, a well deliberated campaign was launched against my client," he added.

"Three properties were purchased overseas when the petitioner was chief justice of the Balochistan High Court," Justice Bandial noted, asking if that wasn't the case.

Malik responded, "The entire nation is looking to this bench, so why hurry?"

"I want the 10-member bench to safeguard this institution," he added.

Justice Bandial said, "We are trying to hear the case as soon as possible."

"We are here to hear cases. Let us know if you want a prolonged deferment of the case," he said. The head of the bench further said that an "honourable friend" from his "community" has been accused so the bench wants to hear out the matter post haste.

He asked Munir to submit his arguments in response to the replies to the petition as soon as possible.

Raza Rabbani, who has also petitioned the court, also asked to be heard. He said that he has additionally highlighted the 2005 rules in his plea while some points in the petition were the same as in other applications.

Justice Bandial replied to Rabbani that the court will listen to him on his turn after the counsel of the central petitioner in the case completes his arguments.

Senior counsel Rasheed A. Rizvi, representing the Sindh High Court Bar Association before the apex court, raised an objection saying that the court at this point was neglecting 15 other petitioners.

"This is a case, not a cake in which everyone ought have a share," Bandial responded to Rizvi.

He added that the bench has to get on with hearing the case. He said that Rizvi will be provided a copy of the reply submitted by the attorney general.

Bilal Manto, another senior counsel and a petitioner in the case, said that he has already submitted an application seeking answers about the establishment of the Supreme Judicial Council. He said he has also sought record of the proceedings in the council. "I won't be able to present arguments without access to the record," he said.

"Your request will be considered at a later stage," Justice Bandial said.

A reference had been instituted in May this year against Justice Isa, accusing the judge of concealing his properties in the United Kingdom allegedly held in the name of his wife and children. After news of the reference hit TV screens, the judge wrote multiple letters to President Arif Alvi, asking him to confirm whether the reports were true.

Subsequently, another reference was filed by a lawyer from Lahore over the judge’s act of writing to and seeking information from the president, accusing him of violating the code of conduct for judges.

The Supreme Judicial Council (SJC), however, quashed the second reference as it did not find the matter "serious or grave enough to constitute misconduct sufficient for his [Justice Isa's] removal from the exalted office of a judge of the Supreme Court".

 

[ghazi52]

UK properties are benami, Justice Isa is ostensible owner: PTI govt tells SC

October 10, 2019

ISLAMABAD: The Supreme Court was informed on Thursday that Justice Qazi Faez Isa was the ‘ostensible owner’ of three foreign properties as his family members purchased the assets at a time when they had no independent source of income.

The assertion was made in the government’s response – submitted by Attorney General of Pakistan Anwar Mansoor Khan – on a set of petitions challenging the presidential references against Justice Isa.

“The petitioner’s spouse and children own expensive properties in the United Kingdom which were purchased in the year 2004 and 2013 at a time when they had no independent source of income of their own,” reads the reply.

“The inescapable conclusion which follows is that the properties are benami and that the petitioner is the ostensible owner,” it continues.

The response states that the presidential reference filed in the Supreme Judicial Council only sought an inquiry to ascertain whether Justice Isa’s conduct in “in owning the properties, though ostensibly, is free from financial impropriety”.

“The simple and straightforward answer to this query would have been to disclose the source of funds employed to purchase the properties, the mode and manner of acquisition of foreign exchange and its transfer to UK,” it continues.

The government’s response states that instead of providing answers, Justice Isa “took a very evasive stand and started vilifying and castigating the complainant”.

“The complainant may not be a symbol of propriety but as a judge, the petitioner [Justice Isa] should have a displayed such a character,” added the response.

The government maintained that the information provided by the complainant was admitted by the petitioner as well “therefore, instead of assassinating the character of the complainant”, Justice Isa should come forward with the information.

Furthermore, the government stressed that the mere filing of a reference by President Arif Alvi cannot be visualised as a threat to the independence of the judiciary. “There is no shred of evidence to establish that any of the Constitutional functionary has acted with slightest of malafide.”

According to the government, the president deliberately omitted the names of Justice Isa’s spouse and children to “keep them out of the controversy”.

Citing Article 248 of the Constitution, the government argued that the president and prime minister of the country have immunity and are not answerable to any court, including the SC, for acts done in exercise of powers and performance of functions of their respective offices.

The reply also stressed that Article 48(4) of the Constitution states that advice tendered to the president by the premier shall not be inquired into by any court.

Finally, the government has denied “all allegations, insinuations, asperations” put forth by Justice Isa and the country’s bar associations and councils alleging the presidential references were filed out of malafide intent and for ulterior motives.

The presidential references

In May, presidential reference was filed in the Supreme Judicial Council against Justice Isa alleging non-disclosure of assets in his wealth statement. In his reply, the top judge maintained that he was neither answerable for the assets of his wife nor adult offspring nor was he under obligation to disclose any information concerning them.

Challenging the allegation, Justice Isa said the presidential references are filed under “malice, ulterior motives and to achieve a collateral purpose and to humiliate, subjugate and browbeat the judiciary, destroy the judiciary’s independence and make the judiciary subservient to the executive by subverting the Constitution.”

In his constitutional plea, Justice Isa also sought a stay in the SJC proceedings against him till the matter was decided in the top court. The council, however, maintains that the proceedings are immune from a judicial review under Article 211 of the Constitution.

In another petition seeking a full-court, Justice Isa had underscored that the ‘possibility’ of the judge being swayed over a personal advantage is a ground for recusal under Article 4 of the Code of Conduct of Judges of the Supreme Court and the High Courts of Pakistan. Consequently, Justice Masood and Justice Ahsan recused themselves from the bench.

 

[ghazi52]

Law has 'safeguards' regarding investigations against judges, Justice Isa's lawyer tells court
October 15, 2019

The legal counsel of Justice Qazi Faez Isa on Tuesday called into question the credibility of Waheed Dogar, the 'complainant' who had first written to the government's Assets Recovery Unit (ARU) alleging that the judge owned property abroad that had not been disclosed in his (Justice Isa's) asset statements.

The complaint had culminated in the government filing a reference against Justice Isa.

A 10-member larger bench, headed by Justice Umar Ata Bandial, had today resumed hearing petitions filed by Justice Isa challenging the presidential reference against him.

Advocate Muneer Malik, who is representing Justice Isa, questioned how legal proceedings could be launched against a judge on the basis of the complaint filed by Dogar.

He argued that there are "certain safeguards" in the law regarding investigations against judges.

"The complaints were received, evidence was collected and references were filed each at different times," Malik noted.

"Do you mean to say that the investigation against the judge was initiated without due process?" Justice Maqbool Baqar, member of the bench, asked.

Malik told the Supreme Court that Dogar had written to the ARU in April soon after Justice Isa issued his verdict in a case pertaining to the Faizabad sit-in.

"The letter [written by Dogar] does not have a phone number or address and does not mention any property that belongs to Justice Qazi Faez Isa," Advocate Malik pointed out, reading out the letter for the court.

"What is the Asset Recovery Unit and why is it in the Prime Minister Secretariat?" Justice Mansoor Ali Shah, also part of the bench, asked.

"Can you tell the court about the legal status of the Assets Recovery Unit?" Justice Baqar inquired. Malik only offered that "there is no civil servant in the ARU".

"According to you, the investigation [against Justice Isa] began because of the [actions of the] Assets Recovery Unit?" Justice Baqar asked.

Malik said that the ARU, after receiving the complaint, had written to the law minister on May 10 asking for his position on the matter. He added that ARU officials had also met with Federal Investigation Agency officials on the same day. During that meeting, the name of Justice Isa's wife and her Spanish nationality had surfaced for the first time, Malik said.

"Her name came up because of a visa request," Justice Bandial noted. "Justice Qazi Faez Isa's wife had been granted a five-year visa."

"But how did Dogar know her name?" Malik argued. Malik insisted that the identities of Justice Isa's wife and their son had been brought forth for the first time after Dogar's letter.

The lawyer also questioned the solidity of Dogar's accusation against the judge. "Dogar obtained the documents [provided as evidence against Justice Isa] after an online search for London properties," the lawyer claimed.

"Can you take data from London's land authority online?" Justice Mansoor Ali Shah wondered.

"You can find out about plots but you cannot find out who they belong to," Malik responded.

"The question is, how was the information regarding the property gathered?" Justice Bandial said, to which Malik answered: "The information was gathered by stalking the petitioner and his family."

"Do you want to say that the FIA and FBR (Federal Board of Revenue) had provided all the information to Dogar?" Justice Bandial asked.

Malik said Dogar had also informed the ARU about Justice K.K. Agha's dual nationality and the property owned by the judge, but failed to provide any documentary evidence.

The lawyer argued that Dogar seemed to be a "fake appellant".

"Are you saying that Dogar is a proxy [for another complainant]? The logic is not understandable," Justice Muneeb Akhtar remarked.

"Dogar is not a trustworthy man, I am telling you this about his credibility," Malik responded.

Justice Bandial asked if Justice Isa had ever given money to his wife as a gift. "I can let you know after confirming this," Malik said.

"We will have the answer to that question," Justice Bandial said.

The court subsequently issued notices to the respondents of the fresh constitutional petitions filed against the Supreme Judicial Council's proceedings in the matter.

The hearing was adjourned till Wednesday.


Justice Isa's petition

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.

The top court judge denies the allegations and has claimed that they are being levelled against him in order to attack him and his family.

In a rejoinder submitted to the top court on Sunday, Justice Isa claimed that the government wanted a subservient judiciary. The government’s team first painted a target on the petitioner’s back but when it did not work, they stooped to target his family and exposed them to danger, the rejoinder filed by Justice Isa in response to government allegations said, adding that this was a demonstrable fact showing malice, mala fide, ulterior motives and victimisation.

He further said that the law of benami set out a number of tests to establish benami ownership, but in the present case not even a single component was met. There was not an iota of evidence to prove that the petitioner judge had paid for the purchase, let alone established that. No reason was ever given why the petitioner judge would resort to buying properties in the name of his wife and adult-children, the rejoinder questioned.

 

[ghazi52]

Justice Isa case: Full bench dissolved due to 'non-availability' of Justice Mazhar Alam
October 21, 2019

Justice Umar Ata Bandial says a request will be sent to top judge for constitution of another bench. — Reuters/File
A 10-member full bench of the Supreme Court hearing a set of petitions challenging the presidential reference against Justice Qazi Faez Isa was dissolved on Monday after one of the judges became inavailable.

Justice Umar Ata Bandial, who was heading the bench, said as the judges congregated that the bench had been dissolved due to the non-availability of Justice Mazhar Alam Miankhel.

"The matter of constituting a new bench is being sent to the chief justice," Justice Bandial said.

Justice Isa's counsel, Munir A. Malik, requested again that a full court bench be formed to hear the case, to which Justice Bandial reminded him that it is up to the chief justice to constitute a bench however he sees fit.

This will be the second time that the chief justice will be requested to reconstitute the bench hearing the petitions regarding presidential references against Justice Isa.

Initially, a seven-member bench was constituted to hear the petitions but, following the recusal of Justice Sardar Tariq Masood and Justice Ijazul Ahsan, a request had been sent to the chief justice to reconstitute a bench to hear the case. The top judge had then constituted the current 10-member bench.

Lawyers question 'urgency'

Members of the Pakistan Bar Council (PBC) expressed reservations over the development, saying that they "cannot see justice being delivered".

Talking to the media after the court's proceedings, PBC lawyers said that the bench had been dissolved because of the absence of one judge. They added that there was no ground to reconstitute the bench as, according to a Supreme Court order, a bench that begins hearing a petition is supposed to hear the entire case.

They said that all petitioners were present in the court and no one had expressed reservations over the current bench. The lawyers announced that they will raise objections over the bench that will be constituted next.

"[We] don't understand the urgency [being shown] in this case," senior lawyer Ali Ahmed Kurd said outside the court.

Another senior lawyer, Hamid Khan, said the proceedings can wait if a judge is unavailable. He added that the 10-member bench had already been formed and the chief justice "does not have the authority" to constitute another bench.

"If this happens, it will be an unconstitutional step," Khan said.

Former president of the Supreme Court Bar Association Rasheed Rizvi, while talking to reporters, said: "From the first day, it seems like these judges cannot wait to pass a verdict within two hours. Do they want to issue a verdict before someone's retirement?

"There is a judgement [which says] that once a bench is formed, it cannot be dissolved. The conduct of these judges clearly shows that there will be no justice," he accused.

PBC Vice President Amjad Ali Shah said that all petitioners who have filed appeals in connection with the presidential references against Justice Isa were present in court today for the hearing, yet the bench was dissolved due to the absence of one judge.

"We will have objections to any other bench except this one," he declared. "We want this bench to hear the case. [It] has [already] held two hearings," he said.

 

[ghazi52]

Justice Isa’s counsel says inquiry violates SJC’s mandate


–SC judge’s counsel says prior approval of federal cabinet is mandatory before submission of presidential reference

–Demands quashing of reference on the basis of ‘mala fide intent’ by executive authorities

–Justice Isa offers to provide details of surveillance operation against his family members

ISLAMABAD: The counsel for Justice Qazi Faez Isa on Tuesday contented that the government’s initiation of inquiry against the Supreme Court (SC) judge had violated the mandate of the Supreme Judicial Council (SJC) as only the latter was allowed to probe a sitting judge.

As the full court bench headed by Justice Umar Ata Bandial heard the presidential reference against Justice Isa, Munir A Malik, the counsel for the SC judge, argued that President Dr Arif Alvi should have sent the reference to the federal cabinet for approval before the administration was allowed to investigate the judge.

He contended that this equates to targeting the judiciary, therefore, the reference must be dismissed based on “mala fide intentions”. He also said that SJC should have taken these aspects into consideration before proceedings were initiated on the reference.

SURVEILLANCE OPERATION:

Justice Isa’s counsel also told the court that his client has offered to submit a sealed affidavit explaining how he was aware of his family being under surveillance.

To this, Attorney General of Pakistan (AGP) Anwar Mansoor Khan said that the apex court was not allowed to record evidence under Article 184 (3) of the Constitution.

Justice Bandial, however, said that as the petitioner has accused the executive authorities of mala fide intentions, he was now trying to provide evidence for it.

Justice Isa’s counsel said that the government never declared how it gathered information on the SC judge. He added that a private agency based in the United Kingdom (UK) was hired to track Justice Isa’s activities there during the past decade.

“I cannot say what mode of surveillance was employed. Emails could have been hacked, or phones tapped, or the defence attache may have obtained secret information related to the UK properties,” said Malik.

He further said that this was evident from the way the government attached the entire travel history of the judge and his family in its reply to the court.

He argued that the relevant authorities issued notices to his client, seeking declaration of assets and tax returns for the period between 2015 to 2018. He added that the mentioned documents had already been submitted.

Justice Muneeb Akhtar replied that the court cannot establish mala fide intent on the basis of interferences.

Justice Bandial said that the apex judicial body could not simply dismiss a presidential reference against as a judge as it was bound to conduct a proper inquiry.

The counsel then quoted the judgement of the apex court in the case of former chief justice of Pakistan (CJP) Iftikhar Muhammad Chaudhry, wherein the top court had dismissed the presidential reference against him on the basis of mala fide intent.

He added that the top court has the power to conduct an ordinary judicial review of the conduct of executive authorities in relation to a reference against a judge. “The SJC’s conduct can be reviewed on the basis of the principles laid down by the top court in the Iftikhar Chaudhry case,” he added.

The court adjourned the hearing of the case till Monday.

It is worth mentioning here that 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 wealth returns. Justice Isa has contested that claim, saying he is not a beneficial owner of the flats — neither direct nor indirect.

 

[ghazi52]

Justice Isa’s petition:
SJC can’t throw away presidential reference, says SC

ISLAMABAD: Supreme Court Justice Umar Ata Bandial maintained on Tuesday that the Supreme Judicial Council (SJC) could not throw away the presidential reference filed against SC judge Justice Qazi Faez Isa.

The Supreme Court was informed that the government had engaged private security agencies for tracing out the record pertaining to activities of Justice Qazi Faez Isa in the United Kingdom during the past 10 years as well as finding out details of his family properties.

A 10-member full court headed by Justice Umar Ata Bandial resumed hearing into identical petitions, challenging the presidential reference filed against Justice Qazi Faez Isa for allegedly owning properties abroad but he did not disclose them in his wealth returns.

Continuing his arguments, Munir A Malik, counsel for Justice Qazi Faez Isa, submitted as to what was themode of surveillance, whether it was made through phone tapping or hacking of emails of the family members of the petitioner or a protocol officer was assigned the task to inquire into the properties, he cannot say in this regard.

“But I have instructions from my client who was prepared to put before the court an affidavit under seal wherein, he could explain in detail as to how he and his family members were subjected to surveillance,” Munir A Malik offered.

“I would object to the sort of arguments and the way the learned counsel for the petitioner is submitting before the court which is hearing a petition filed under Article 184(3) of the Constitution”, Attorney General Anwar Mansoor Khan interrupted after rising to the rostrum.

He contended that evidence cannot be produced before the court during the instant matter, being heard under Article 184(3) of the Constitution.

The AG submitted that there was another forum where evidence could be placed before it. Justice Umar Ata Bandial, however, observed that prima facie the petitioner has made allegations that the presidential reference had been filed against him on mala fide intentions.

“Let the counsel for the petitioner establish the facts regarding mala fide”, Justice Bandial told the Attorney General. Munir A Malik, however, questioned as to how complainant Abdul Hameed Dogar had got exact address of properties of his client despite the fact that he had never been to London.

Justice Munib Akhtar, another member of the bench, observed that the learned counsel was just drawing inference from the incidents but not relying on facts to establish the mala fide. The counsel, however, contended that even the federation has never given any explanation as to how it got the details regarding London properties.

He submitted that head of Asset Recovery Unit (ARU) had dispatched a letter on May 20, 2019 to Federal Law Minister for conducting an inquiry. “Once the reference is filed before the Supreme Judicial Council (SJC), what business of conducting an investigation is meant for,” Malik questioned adding that the collection of evidence is the job of the Council but not in the domain of ARU.

He submitted that the judiciary should be insulated of victimisation by the executive while discharging its functions. Justice Mansoor Ali Shah questioned as to how investigation was conducted without bringing into the notice of the president and prime minister. Justice Maqbool Baqir observed that only the Supreme Judicial Council is mandated to conduct an inquiry into the misconduct of a judge.

Munir A Malik while replying to a court query said that the collection of material is to be authorised by the president but before filing a reference in the Supreme Judicial Council.

Justice Munib Akhtar asked the learned counsel whether the Supreme Court could send the matter to the Supreme Judicial Council to which Munir A Malik replied that the jurisdiction of the Council is very limited and matter related to mala fide, coram non judice, etc were beyond the scope of Council but the apex court, however, has the jurisdiction to review it.

Coram non judice is used to indicate a legal proceeding that is outside the presence of a judge (without a judge), with improper venue, or without jurisdiction. On the question of maintainability, Munir A Malik cited the apex court judgment, delivered in former chief justice Iftikhar Muhammad Chaudhry case, wherein a presidential reference against the former chief justice of Pakistan was quashed by the top court on the basis of mala fide intent.

The learned counsel read out observations given by the court on pages 82 and 85 of the instant judgment and submitted that the apex court has the authority to carry out an ordinary judicial review of the conduct of executive authorities in relation to a reference against a judge.

Meanwhile, the court adjourned the hearing until next Monday. Justice Umar Ata Bandial praised Munir A Malik for presenting his arguments and raising important law points. Earlier, during the course of the proceedings, Munir A Malik in pursuance of the court’s earlier order, gave a complete travel history of Justice Qazi Faez Isa and his family members while coming to Pakistan as well as visiting United Kingdom.

Bilal Manto, counsel for one of the petitioners, came to the rostrum and recalled that in his petition, he had sought some data regarding the volume of complaints so far decided by the Supreme Judicial Council.

Justice Umar Ata Bandial, however, told the counsel that his application relates to the administrative as well structure of the Council, however, he said that at present the court is focusing on the main petition, filed by the learned judge of the apex court but assured the counsel that the court would look into his application later on.

 

[ghazi52]

President, premier, law minister be made parties in Justice Isa reference case, counsel argues in SC

November 04, 2019

Justice Qazi Faez Isa. — File screengrab courtesy of DawnNewsTV
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. The counsel said that the apex court can be approached instead to fix the issue of intentions or ambit of powers.

The hearing of the case has been deferred till tomorrow [Tuesday].

 

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SJC issued notices to Justice Isa on points not raised in reference, SC told

November 4, 2019

ISLAMABAD: There are allegations that the Supreme Judicial Council (SJC) harbours a bias towards Justice Qazi Faez Isa as the forum exceeded its jurisdiction by issuing show-cause notices on points which were not raised in the presidential reference against the apex court judge.

This was stated by Justice Isa’s attorney, Muneer A Malik, during Monday’s Supreme Court hearing as the 10-judge full-court, led by Justice Umar Ata Bandial, resumed hearing a set of petitions challenging the presidential reference against Justice Isa.

Malik was responding to Justice Bandial’s observation regarding the apex court’s jurisdiction under Article 184 (3).

The latter said that remedy under Article 184 (3) was not open to everyone as, after the SC judgment in the Shaukat Aziz Siddiqui case, the affected judge can now make a request to the SJC for a public hearing.

However, Malik said the situation in this particular case was also extraordinary as this was only the second time in Pakistan’s history that a full bench was hearing the case of an SC judge.

Justice Isa offers details on surveillance operation against him and his family

Regarding presidential immunity under Article 248, Malik said the same cannot apply to presidential acts which are without jurisdiction, malafide, and coram non judice.

Justice Muneeb Akhtar, while comparing the Iftikhar Muhammad Chaudhry case with Justice Isa’s case, noted that in the former there were specific, direct and serious allegations of mala fide against then-president Pervez Musharraf.

In Justice Isa’s case, he said, there are general allegations against the referring authority. “You have to give specific and direct incidents which could establish mala fide against executive authorities,” said the judge.

Malik stated that he is attributing mala fide in law towards the president as he acted unconstitutionally on the advice of the prime minister and sent a reference against the SC judge.

Justice Mansoor Ali Shah questioned under what law was material collected to file a reference against the apex court judge.

“If the material was collected illegally, then it means the judge’s privacy guaranteed under Article 14 has been violated.”

Justice Maqbool Baqar asked whether the issuance of a show-cause notice by the SJC bars the SC from entertaining the judge’s petition against the council’s proceedings.

Malik, while referring to the Iftikhar Muhammad Chaudhry judgement, contended that there was no constitutional bar under Article 211 if the reference is based on malafide, illegal and non coram judice.

Justifying Justice Isa’s decision to approach the SC, his attorney stated the SJC cannot strike down the presidential reference but the apex court can do the same in view of the principal laid down in the Iftikhar Chaudhry case.

The hearing was adjourned till Tuesday.

 

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ARU chief has no powers to collect evidence, SC told

ISLAMABAD: The office of the Assets Recovery Unit’s (ARU) chairman does not fall under the definition of the “service of Pakistan” since the individual concerned is a special assistant to the prime minister, argued Advocate Babar Sattar before a 10-judge full court of the Supreme Court on Tuesday during the hearing of a set of challenges to the presidential reference against Justice Qazi Faez Isa.

“The ARU is not a department established under the law and at best it can be said that it was set up under an executive order,” Babar Sattar said, citing rules dealing with the service of Pakistan.

Justice Umar Ata Bandial heads the full court.

Babar Sattar, who was on his legs for the second consecutive day, was trying to establish that the exercise of collecting material by ARU was not done under any authorisation.

The ARU chairman should not be treated as an officer of the federal government, the counsel stressed, but hastened to add that it was for the federal government to explain to the court the department’s legal status.

Referring to Section 216(p) of the Income Tax Ordinance (ITO), Mr Sattar argued that no court or authority, including the Supreme Judicial Council (SJC), can ask for information regarding tax returns or wealth statement of Justice Isa’s wife, especially when she was not a public servant.

The real dispute at hand, the counsel argued, was that material placed before the President was not substantial enough to convince him that the allegations made against the judge were sufficient to become a reference on misconduct.

Quoting excerpts from the Foreign Exchange Regulations Act as well as the Money Laundering Act, Babar Sattar contended that none of the machinery available under these statutes was ever set in motion for collection of evidence against the judge or any report from the State Bank of Pakistan (SBP) was called to establish violation of foreign exchange regulations.

Justice Bandial observed that the code of conduct for judges dealt with impropriety and conduct, emphasising that this code was not meant to protect judges only, but to safeguard the judiciary as an institution.

The code of conduct was invoked in the Justice Isa case and the allegation of misconduct levelled against him for not disclosing the source of funds for acquiring properties in Britain, Justice Bandial explained.

But the counsel retorted that under the code of conduct, the judge has to be blameless in the eye of certain laws and it was not right to indulge in mudslinging just because “12 people stood up and pointed fingers” at the judge.

Justice Bandial advised Mr Sattar not to formulate arguments that he cannot substantiate by citing case laws.

The lawyer explained that the SJC cannot determine the civil rights of a judge and cited the money laundering act to argue that only the Financial Monitoring Unit (FMU) can examine allegations of money laundering since it was founded under the law.

But none of the reports prepared by FMU was before the President when he formed his opinion. Thus the president has drawn an inference against the judge without any material to establish breach of the foreign exchange act or money laundering laws, he contended.

Since the doctrine of sufficient connection (for drawing inference) has no place in the constitution or recognised by the code of conduct or any law, no duty or obligation of disclosing assets owned by his wife and children could be placed on the judge.

Justice Muneeb Akhtar wondered whether this doctrine existed in the country’s laws, but the counsel repeated that this doctrine had no place in Pakistan.

Referring to a letter of the Federal Board of Revenue (FBR) to the ARU chairman, the counsel argued that the Income Tax Ordinance (ITO), 2001, did not vest any advisory jurisdiction upon any officer.

The counsel referred to different sections of ITO to state that tax officers enjoyed jurisdiction of assessment, revision and appellate authority to impose penalties, but no advisory jurisdiction.

Justice Maqbool Baqar asked Mr Sattar whether disclosure of unauthorised tax returns was an offence or not.

Justice Muneeb Akhtar explained that it was a criminal offence and the offender can go to jail for almost a year.

He observed that since public servants can park assets in the name of their spouses, the authorities can establish reasonable nexus between an official and the spouse.

Justice Syed Mansoor Ali Shah asked the counsel whether the President, before invoking Article 209 of the constitution, can ask the complainant to provide further evidence so that SJC proceedings be initiated against the judge or he can put the entire government machinery to work for the collection of evidence.

The counsel explained that the idea behind Article 209 was to protect the tenure of a judge and that the President cannot ask for launching a fishing expedition.

Instead of formulating a reference against the judge, at best FBR could have issued show cause notice to the spouse to explain why offshore properties were not disclosed and then could have issued an order for reassessment of the returns and in case the spouse was not satisfied, she could have challenged the reassessment order.

 

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Judge video scandal case: IHC mandated to announce its decision, says SC

ISLAMABAD: The Supreme Court on Tuesday disposed of former prime minister Muhammad Nawaz Sharif’s petition, seeking review of its August 23 verdict in a video scandal case involving former accountability court judge Arshad Malik.

A three-member bench of the apex court, headed by Chief Justice Asif Saeed Khan Khosa and comprising Justice Sardar Tariq Masood and Justice Syed Mansoor Ali Shah, heard the review petition filed by Advocate Khawaja Harris on behalf of Nawaz Sharif.

Chief Justice Asif Saeed Khosa observed that the apex court’s remarks will not influence proceedings of the video scandal case currently being heard by the Islamabad High Court (IHC). He said the earlier judgment stated that the high court was empowered to make its own decision without being influenced by the apex court’s verdict. He observed that Nawaz Sharif’s counsel Khawaja Haris’ arguments were repetitive, as the Supreme Court had already debated and decided on them in the August 23 verdict.

Justice Khosa further remarked that an impression was being created that the IHC’s powers were restricted. “This happens when the judgment is not thoroughly read,” he added. The chief justice said the IHC was mandated to announce its decision in the video scandal case.

 

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Justice Faez Isa raises questions on eligibility of Shahzad Akbar's appointment as ARU head

Justice Qazi Faez Isa on Friday questioned the eligibility of Special Assistant to Prime Minister on Accountability Shahzad Akbar's appointment as the head of the Asset Recovery Unit (ARU) and for public office.

A 10-member judge bench, led by Justice Umar Ata Bandial, will resume hearing the case on June 2, which was earlier scheduled to be taken up on March 30. The apex court had postponed the hearing due to the coronavirus pandemic.

On the last hearing on February 24, the federal government had sought a three weeks' adjournment in the case.

The Supreme Court judge has raised 15 questions in a rejoinder submitted to the apex court in a case pertaining to the offshore properties owned by his family members which were not declared in his tax returns.

Justice Isa has challenged the presidential reference filed against him in the Supreme Judicial Council and filed a petition in the SC saying the case was based on mala fide intent.

The judge questioned Akbar’s eligibility to be appointed as ARU chief and the procedure adopted for his appointment.

“Who appointed Shahzad Akbar?” he asked.

“Did the government announce the vacancy in newspapers or were applications sought for the appointment of the chairman of the Asset Recovery Unit?”

Justica Isa, in his rejoinder, also sought to know whether Akbar's appointment was made through Federal Public Service Commission and if answers to these four questions are in negative, then how he had been appointed as the ARU head.

He also asked authorities to share the terms and conditions of his job.

“Is Shahzad Akbar a Pakistani or does he hold dual nationality?” asked Justice Isa.

Seeking information about SAPM’s tax details, the SC judge asked why he has not made anything public about his family members and the nationality they hold.

“What’s his income tax and wealth status and from when he started submitting his tax returns?”

In another question, Justice Isa asked about the bank details, properties and assets owned by the prime minister’s assistant.

Justice Isa also demanded the information about the assets owned by SAPM Akbar’s family and whether he has declared these in his returns or not.

The SC judge said that ARU is an illegal entity and the money spent on it is a ‘theft’ of public money and the unit collected the information about him through unlawful means.

He also contended that former attorney general Anwar Mansoor Khan, Law Minister Farogh Naseem and SAPM Akbar were in contempt of court.

 

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Justice Isa case: Farogh Naseem says FBR didn't take action over 'fear' of consequences

ISLAMABAD: The Supreme Court of Pakistan resumed hearing on Wednesday in the presidential reference filed against Justice Qazi Faez Isa in relation to his assets in London.

A ten-member larger SC bench headed by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed heard the case today.

The apex court looked into the petitions by the Supreme Judicial council today, where during the arguments the government’s counsel Farogh Naseem claimed that the Federal Bureau of Investigation did not begin inquiry against Justice Isa, out of fear.

During the arguments, Naseem said that in 2019, Waheed Dogar sent the complaint to the Assets Recovery Unit and wrote a letter as well regarding the properties in London.

“Tell us, who gave permission to Dogar to conduct inquiry into the matter?” said Justice Mansoor Ali Shah, asking how did the ARU launch an inquiry in the issue.

To which, Naseem responded that the ARU has the support of the law, and after 1988, the record of every property in London is open.

Justice Atta Bandiyal said that the apex court judge is not facing an allegation of corruption, but of not revealing his assets in London.

“Justice Isa’s wife and children also didn’t declare the London property,” said the government’s counsel.

Naseem continued that despite the judge hailing from an affluent family, the record does not show agricultural tax on the land.

“Why did the FBR not take action in the case?” said Justice Maqbool Baqir.

“The FBR was scared if they acted against a judge, they will be facing legal action,” said Naseem.

In yesterday's hearing, Barrister Farogh Naseem faced objection for his representation of the government in the presidential reference.

Naseem had earlier tendered his resignation to represent government in the case agaisnt the judge.

The reference filed against Justice Isa alleged 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 wealth returns.

In February this year, the Supreme Court (SC) had directed the federal government to explain in court whether the Asset Recovery Unit (ARU) was empowered to conduct an inquiry against a sitting judge of the apex court.

The results of the inquiry, later placed before President Arif Alvi, had resulted in a presidential reference filed against Justice Isa back in May 2019. Justice Isa had been accused of failing to disclose assets belonging to his wife and children in his tax returns.