By Khalid Hussain
Judges tried to clobber down counsel of Justice Qazi Faez Isa former Attorney General for Pakistan Munir A. Malik on the jurisdiction of the Supreme Judicial Council (SJC) to inquire into the genesis of a presidential directive aka reference to inquire into the conduct of a judge for removal under Article 209 (5) of the Constitution of Pakistan (Constitution) as hearing resumed in the full court of the Supreme Court (SC) on Monday but he stood his ground. “The SJC is a domestic fact finding forum with limited jurisdiction”, he firmly submitted, adding, “It is not a court of law and can neither inquire into the constitutionality of a presidential reference nor tell the President the reference is filed illegally”.
Justices Muneeb Akhtar, Faisal Arab, Umar Ata Bandial and Mansoor Ali Khan went at length questioning the grounds of the Constitutional Original Petition filed by Justice Qazi Faez Isa. They seemed to be of the opinion that the SJC was the right forum to address all grievances of a respondent judge. Malik respectfully disagreed submitting the SJC was a domestic fact finding forum with limited jurisdiction and hence cannot go into the questions of malice, malafide or even the legality of the process leading up to the filing of a reference by the President of Pakistan under Article 209 (5) for the removal of a superior court judge.
The issue of SJC jurisdiction arose out of an earlier discourse Malik argued as he opened the day in the full court. He began by elucidating provisions of Article 211 of the Constitution Article on the Bar of jurisdiction that lays down that the proceedings before the SJC, its report to the President and the removal of a Judge under clause (6) of Article 209 shall not be called in question in any Court. Malik cited the full case order in the case of Justice Iftikhar Mohammad Chaudhry as he submitted, “anything prior to filing of the reference falls outside the ambit of Article 211. The immunity clause only comes into play after receipt of the reference at the SJC”.
“Any illegality in Phase-I is open to judicial review like all other executive actions”, he said arguing procedural deviations, failure to act justly and fairly are sufficient grounds to quash an executive action. “To show malice is not an essential requirement. If I do, then it is icing on the cake”, he declared.
“Article 211 is to protect judges against the executive. Once a reference is filed, the reputation of a judge is in tatters if it is leaked to the media”, he said obviously referring to the leakage of the Presidential reference against Justice Isa that was widely publicised in the media.
Justice Muneeb Akhtar observed these were interesting points and asking if he meant that Phase I fell under Article 209 while Article 211 retains jurisdiction over proceedings thereupon. He also asked a question,”Does the SJC has jurisdiction over actions under article 209?”
“The Supreme Court has jurisdiction”, Malik responded promptly, adding, “The SC ought to exercise jurisdiction”. Matters leading to the filing of the reference fall outside the jurisdiction of the SJC, he submitted. “There was no alternative but to move this Constitutional Original Petition”, he stressed, adding, “The SJC is not a court at all, much less a court of general jurisdiction”.
“Article 209 (5) inquires into the conduct of the judge and not the President. The report by the SJC is only whether or not the judge is guilty of misconduct. It is recommendatory in nature. “
Justice Faisal Arab inquired if it was not true that under 209 (5) the SJC can issue discovery orders? Malik reiterated that the SJC was but a fact finding domestic forum. Justice Arab pressed on saying it can call witnesses. Malik submitted it cannot judge rights of parties or adjudicate eminent law for it is but a domestic forum on whether or not the judge was guilty of misconduct.
Citing the 2010 case of Justice Iftikhar Chaudhry Versus the President of Pakistan in the Supreme Court of Pakistan he read from the judgement, “SJC was not a court though a constitutional body whose status is much higher”.
Justice Faisal Arab asked to expound on the Phase-I and II of the reference while Justice Muneeb Akhtar asked whether the SJC has jurisdiction over Phase-I? “In the course of proceedings, facts come on record. If the reference was malafide, is it required by law in the report to shut its eyes?”
Malik responded, “I did not submit the SJC cannot look at malice but it is concomitant. However, it cannot strike down the reference. On the SC can.”
Justice Muneeb Akhtar asked if it cannot make a report on constitutional issues? Malik responded that the SJC report is about the conduct of the judge. There can be no report on the conduct of the President. Justice Akhtar asked if his case was that the reference before the SJC was malafide? Malik submitted that the SJC cannot strike down a reference on it being malafide. These are two different findings. The judge argued the SJC doesn’t need to record or is it in a straight jacket? Malik argued the Presidential actions raise constitutional questions. Justice Muneed shot back that the SJC can look at constitutional issues saying, “yes, it can”, adding, “when the SC hears it, it is for the interpretation of the constitution.” Malik reiterated that it can look at what the law is but it cannot enunciate what he law is!
Justice Umar Ata Bandial quipped, “What you are suggesting is the whole process can be stopped”, noting, “there is merit in what Justice Muneeb Akhtar said. The process should continue. The petition has been filed for other reasons. It doesn’t mean the process should be stopped. SJC is the exclusive forum to inquire into and report on the conduct of judges of the superior courts.”
Responding to another observation by Justice Muneeb Akhtar on the SJC composition, Malik noted the SJC cannot interpret constitutional issues. “Article 184 sets out the apex court’s original jurisdiction and enables it to assume jurisdiction. The principle of comity of judges has never been an impediment in enforcing fundamental rights.”
Justice Muneeb Akhtar said under Article 209, the aggrieved petitioner has taken an odious view of the Constitution. “Is this not an extraordinary situation? Interpretation of the Constitution is the jurisdiction of the SC. While Article 209 is in the jurisdiction of the SJC.”
“If I was to say that the SJC has jurisdiction in Phase-I, then yes. Same reason why this court ought to examine the jurisdiction if I can show the formation of opinion by the President was invalid, unconstitutional”, Malik responded.
Justice Bandial said, “We will come back to it. Now you are challenging the opinion formed by the President.” Malik asked, “Let me…” but was cut short by Justice Bandial saying, “We will come back to it tomorrow.” Justice Mansoor Ali Khan said, “Once the SJC renders the decision, we can look at the matter.” Malik submitted it can only be done now and not after. Citing from Justice Shaukat Ali’s case Malik read a paragraph. “It is not for the Council whether the reference should have been or not made…Neither can it return the reference.”
Jusitce Mansoor Ali Khan noted the President could inquire into the facts of the case before forming an opinion.” Justice Faisal Arab observed that the Justice Shaukat Ali case was under the 1962 Constitution when the President was also the head of the executive. Justice Muneeb Akhtar said there must first have been an inquiry and then the reference sent to the President. He studied the facts, reflected, made up his mind and then sent the refence. “It is hardly opent to the respondent judge to turn around and say the opinion was not formed correctly”.
Malik submitted that the inquiry by the SJC is on two points only. Where or not the judge was guilty of misconduct. Citing the Iftikhar Chaudhry case, Malik noted that the Constitutional requirement is that the President shall make his independent opinion. Justice Muneeb observed that the circumstances of the Chaudhry Iftikhar case and the reference against Justice Isa were not the same.
With an obvious harking back upon the immunity waver of the President viz a viz executive actions, Justice Faisal Arab noted that under the 1962 Constitution, the President was head of the executive but that was no longer the case. He asked Malik why you don’t leave this matter to the SJC adding, “We do not have jurisdiction”.
Malik was quick to respond, “You do not exercise jurisdiction. The SJC is not a court. It cannot enunciate law. It cannot judge the conduct of the President. And it cannot rule on the constitutional question whether the President was to apply his mind or just act on the advice of the Prime Minister.” Elucidating further he added, “The scope of the inquiry by the SJC is limited to the conduct of the judge. My challenge would be limited for it is Coram non judice. ”
Justice Bandial said why this court should intervene. Justice Muneeb asked if he means access to justice is denied if the reference is malafide and thus is a violation of fundamental rights? Malik said he accepts that.
Malik further noted that the SJC are not open proceedings. Before this court, proceedings are open. Justice Mansoor noted SJC is not a court. So it can’t declare whether the facts in respondents income tax the same way as on facts decided by some court of law. Justice Muneeb asked if there was not a judgement on open proceedings already by the SC? Malik quickly responded that he has already applied on record in the SJC.
He urged the court to, “Lay down the procedure. Lay down the law.” He noted that it was only “second time a full court was hearing a case in 70 years!”
Justice Bandial noted Article 184 was invoked every time in this court against process under 209 but this is not a remedy open to everyone. Malik submitted that the SJC has exceeded its jurisdiction. There are allegations of procedural impropriety. “One more reason why this court must decide these questions”, he stressed.
Malik then moved on to Article 248 that says “The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not he answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions: Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federation or a Province.”
He noted that the immunity clauses are to be strictly controlled. “Framers of the Constitution accorded protection within the four corners of the Constitution. They did not protect actions or consequences without jurisdiction, malafide or coram non judice.” Citing the case of Chaudhry Zahoor Elahi Vs the Federation, Masoor Vs Ardeshwar Cowasjee and Iftikhar Chaudhary Vs President of Pakistan, he said the SC had ruled illegal acts has no immunity. Refering to Privy Council decision in the case of Nawabzada Umar Khan, he said it held no one is above the law.
Justice Muneeb noted that in the case of Iftikhar Chaudhary, allegations against the President were direct and personal while yours are general. Give us specifics.
Malik contended immunity under Article 211 was limited. Malafide in fact are alleged. It is mandatory against person. The person then must have an opportunity to respond, whereas malafide in law may not implead a person as a party. “Even if not, immunity disappears under Article 248”, he asserted, pointing out, “Why the President, Prime Minister and the Law Minister acted in malafide manner?”
Justice Maqbool Baqir noted the methodology was different in fact of malafide. The modus operandi.
Justice Arab asked if the complaint in malafide was examined.
Justice Mansoor Ali Khan asked if immunity was lifted by a court of law? Malik responded in affirmation. “I would argue when I come to malice that the President acted illegally, unconstitutionally in acting on the advice of the Prime Minister. I will resume my arguments how the opinion was to be formed. The President did not apply his own mind. It is a failure in his constitutional duty when he acted on the advice of the Prime Minister in the reference.
Justice Arab Asked if he signed without reading the reference? He noted the reference under Article 209 (5) was a unique function. He asked, “Does the reference says ‘on the advice of the Prime Minister’?
Malik read from the reference in Part II of the Petition. “As per advice of the Prime Minister, I formed my opinion.” Upon inquiries from Justices Mansoor and Muneeb, Malik read from the response of the petitioner to the SJC: “President is of the opinion”, “The reference was not placed before the cabinet”.
Justice Muneeb further inquired if it is the case he received advice, applied his mind. Malik submitted that the President does not state he applied his mind.
Justice Mansoor inquired under what law that information has been collected? He noted, “I have a right to privacy. It concerns me. Must be some authority saying go ahead.”
The court adjourned to the next day.
