SC questions ARU's powers to collect evidence against judge.

Byline: Nasir Iqbal

ISLAMABAD -- Justice Maqbool Baqar of the Supreme Court on Monday asked the counsel for Justice Qazi Faez Isa facing a presidential reference to elucidate the executive's authority to conduct an inquiry against a sitting superior court judge through a forum which has not been prescribed in the law.

Justice Syed Mansoor Ali Shah also asked Muneer A. Malik to explain under what law the Asset Recovery Unit (ARU) had collected the material to be used in the reference against Justice Isa, wondering if an individual had the right to collect evidence against the judge and whether the judge also enjoyed the right to privacy and dignity as guaranteed under Article 14 of the Constitution.

Justice Shah also asked the counsel if the Supreme Judicial Council (SJC), while proceeding against a judge, could also be allowed to move against the conduct of the president for referring the reference to the council by lifting the immunity under Article 248 of the Constitution.

Justice Umar Ata Bandial, who was presiding over a 10-judge full court, however, recalled that the ARU was set up against the backdrop of the 2018 Supreme Court order in the foreign accounts case.

The court was hearing a set of petitions challenging the filing of the presidential reference against Justice Isa of the Supreme Court.

Advocate Muneer Malik will reply to the questions when the court would take up the matter on Tuesday. However, he referred to Article 248 of the Constitution which provided immunity to the president, prime minister, governors, chief ministers and ministers. He argued that the framers of the Constitution were clear in their mind that this clause should afford protection to the actions if taken by constitutional office holders within the four corners of the Constitution.

The same immunity was not intended to protect the actions of individuals as a consequence of action that was illegal, coram non judice or mala fide, the counsel emphasised. He cited the 1975 Zahoor Ellahi versus Zulfikar Ali Bhutto case in which it was held that the immunity could not be extended to any illegal or unconstitutional acts.

Justice Muneeb Akhtar, a member of the bench, however, recalled that in the 2010 Iftikhar Mohammad Chaudhry case, shocking and specific instances and direct and personal allegations were levelled by the then chief justice in his petition filed in the apex court. These allegations were later analysed by the full court then and found to be correct...