SC debates next step if it finds case against judge was wrongful.


Byline: Nasir Iqbal

ISLAMABAD -- The Supreme Court on Wednesday wondered what could be the consequences if it concluded that top government functionaries - the president, the prime minister and the law minister -exceeded their discretion by filing a reference against a sitting judge of the apex court.

'If we agree with your arguments and come to the conclusion that the president, the prime minister and the law minister exceeded their discretion, then what steps or mechanism you envisage to be taken in future against them or should it be left as it is,' Justice Yahya Afridi asked advocate Muneer Malik, who is representing Justice Qazi Faez Isa in a case against the filing of the presidential reference against the judge.

Justice Afridi advised the lawyer to ponder over during the brief recess - the next hearing will be sometime next week - about consequences for top government functionaries and then apprise the court since the judiciary's independence must be protected.

At the same time Justice Afridi also observed that acceptance of the counsel's arguments would give blanket immunity and complete protection to judges of the Supreme Court.

'Don't you think it is appropriate that there should be some check and balance on the judiciary too since the mother of all fundamental rights is the independence of the judiciary,' Justice Afridi said.

'No one is above the law,' the counsel replied promptly. 'Credibility of the judiciary rests on its accountability.'

Muneer Malik, closing his arguments, emphasised that the reference against Justice Isa needed to be struck down since it had not been sent by the president on the cabinet's advice.

Justice Syed Mansoor Ali Shah wondered if the president received a complaint from the executive under Article 209 of the Constitution for removing a judge, how could he form his independent opinion as the executive itself was a complainant.

Removal of the judges is a different subject altogether since it has serious consequences and needed to be guarded against the intentions of the executive, Justice Shah observed.

'I have found Article 209 unique and insulated, rather a world of its own,' the judge said. 'The president, under Article 209, is not advancing or acting in furtherance of the executive functions.'

The counsel argued that appointment of superior court judges was unique as constitutional functions which have been conferred upon the president have to be exercised independently.

After the 2016 Supreme Court...

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