President duty bound to defend independence of judiciary

[ahlam1399]

ISLAMABAD: Senior advocate Hamid Khan on Wednesday told the Supreme Court (SC) that the president was required to apply his mind independently by checking the reliability, credibility and fairness of a complaint against a judge before forwarding it to the Supreme Judicial Council (SJC)A ten-member full court headed by Justice Umar Ata Bandial resumed hearing into the identical petitions, challenging the Presidential Reference filed against Justice Qazi Faez Isa for allegedly not disclosing his foreign properties in his wealth returns.Other members of the bench include Justice Maqbool Baqir, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Muhammad Qazi Amin Ahmed.Continuing his arguments, Hamid Khan, counsel for the four petitions challenging the Presidential Reference filed against Justice Qazi Faez Isa submitted that it is the duty of the president to uphold, defend and protect the independence of judiciary. Supreme Court Bar Association (SCBA), Quetta Bar Association President Muhammad Asif Reki, the Balochistan Bar Council and Punjab Bar Council’s Vice Chairman Shahnawaz Ismail had challenged before the apex court the presidential reference against Justice Qazi Faez Isa.“The president has to ensure that the allegations made against a judge and the collection of material made against him in fair manner keeping in view the credibility of the judiciary”, Hamid Khan contended.He further submitted that the president has to safeguard, protect and defend the independence of judiciary while the credibility of a judge should be safe from any damage.Justice Umar Ata Bandial observed that in 1998 in the case of Benazir Bhutto wherein tapping of phone was discussed and the court had held that neither the office nor home of the dignitaries be monitored.“Now the question arises as to whether any process in our constitution or international laws available in this regard and what criteria here will apply”, Justice Bandial asked the counsel.Hamid Khan replied that in Ifthikhar Chaudhry’s case, the intelligence agencies were given directions adding that the process initiated by the Asset Recovery Unit (ARU) for collection of material against the judge was not made in accordance with law.Hamid Khan also cited a judgment of the UK court as well referred to Section 3 of the Constitutional Reform Act 2005, United Kingdom.Under this section, the Lord Chancellor, other Ministers of the Crown and all with responsibility for matters relating to the judiciary or otherwise to the administration of justice must uphold the continued independence of the judiciary.Justice Yahya Afridi, another member of the bench said that the word misconduct, which was available in 1962 constitution but missing in the 19973 constitution.Hamid Khan replied it is difficult to draw distinction however, he submitted that in 1956 constitution, the word misbehave was mentioned and so on in the US constitution as well.Similarly, Hamid Khan also cited Article 124 (4) of the constitution wherein it states that a judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.He said that as the President of India alone has the power to appoint as well as to remove a High Court Judge from his office on grounds of proved misbehaviour or incapacity, as provided in Article 124 (4) of the constitution, he is deemed to be the authority to grant sanction for prosecution of a judge.In order to adequately protect a judge from frivolous prosecution and unnecessary harassment, the president is required to consult the Chief Justice of India.Hamid Khan also referred to Article 10-A of the constitution about a fair trial and cited a judgment reported in 1994 and read out a relevant para of the said judgment saying once a judge is appointed he has a right of protection of term of his office.Meanwhile, Hamid Khan concluded his argument and the court adjourned the hearing until today (Thursday) wherein Syed Iftikhar Hussain Gillani, counsel for one of the petitioners will commence his arguments.http://feeds.feedburner.com/~r/com/cwEr/~4/LyIiswvyofc

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