Alvi through press release should defend Presidential reference to SJC despite cowardice of Imran & Mansoor. By Hem Raj Jain

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First and foremost, it should be understood that in modern progressive world the democracies are governed by rule-of-law and judiciary is the organ of State through which people ensure it. If judiciary (especially its supreme Court) becomes above law and starts ganging-up to protect the suspicious (even by the President of the country) Judges of the Courts of Record (Supreme Court and High Courts) upon whom the entire system of jurisprudence rests, then any such country has no future whatsoever. Therefore the head of the State of Pakistan its President Arif Alvi has special responsibility to protect rule-of-law and for this Alvi should issue public statement through press release defending Presidential reference to Supreme Judicial Council (SJC) despite cowardice of Prime Minister Imran Khan & Attorney General Anwar Mansoor Khan who have practically & cowardly left this Presidential reference undefended in Supreme Court of Pakistan (SCP).

 This refers to on-going controversy which is raging in Pakistan on the issue of resignation of Attorney General Anwar Mansoor Khan (https://www.dawn.com/news/1535607 and https://www.dawn.com/news/1535361/ags-reply-in-justice-isa-case-begins-on-sour-note ). Mansoor was forced to resign under pressure from higher judicial community (Bar Council, Bar Association, bench of SCP etc ) for the simple reason that he defended in SCP the reference by President of Pakistan to SJC to enquire & then report into the matter of misconduct of Judge Qazi Faez Isa. Now Mansoor in a legally objectionable way has succumbed to the pressure of higher judicial community and has apologized to SCP as reported at https://nation.com.pk/21-Feb-2020/ex-agp-anwar-mansoor-submits-unconditional-apology-in-supreme-court

 It is not the first time that the judicial community, government and constitutional authorities of Indian subcontinent have ganged-up to protect the misconduct of judges of Courts of Records. It has happened many times in India too. For example the five judges of SCI were guilty of criminal Contempt of Court when 4 Judges in a press conference accused CJI of misconduct as mentioned at https://www.alwihdainfo.com/President-PM-shirking-while-CJI-afraid-of-initiating-contempt-proceeding-against-4-SCJs_a60614.html but the judicial community, government & constitutional authorities of India saw to it that nothing happens to these 5 judges of SCI.

 If one wants to know the absurdity of the stand being taken by judicial community of Pakistan against Presidential reference then one has to merely go through the letter of former CJP Iftikhar Chaudhary to SJC for dismissing this Presidential reference (as reported at  https://www.thenews.com.pk/print/483891-text-of-ex-cj-iftikhar-ch-letter-to-sjc ).

 In this letter Iftikhar absurdly says that –[Article 48(l) of the Constitution mandates that "in the exercise of his functions, the President shall act on and in accordance with the advice of the Cabinet or the Prime Minister”] and President did not do so hence this Presidential reference should be rejected by SJC.

 Iftikhar while defending the prima-faci misconduct of Judge Isa [as per doubts of President, which needs to be further inquired into & investigated by SJC hence Presidential reference under Article 209 (5) (b) of the Constitution] conveniently forgot the Article 48 (2) which reads as – “[Notwithstanding anything contained in clause (1), the President shall act in his discretion in respect of any matter in respect of which he is empowered by the Constitution to do so and the validity of anything done by the President in his discretion shall not be called in question on any ground whatsoever]”.

Alvi has to realize that Iftikhars’s contention that “[Reference does not suggest a single allegation about the involvement of learned Judge except saying that, his spouse and children, have property outside the country. Whereas, under Section 116 of the Income Tax Ordinance, 2000, he is not under obligation, in any manner, to file the wealth statement of his spouse or grown up children as they are not his dependents”] is fallacious to say the least. If this argument of Iftikhar is conceded then whatever proceedings are going on in the Courts of Pakistan on behalf of NAB and other institutions of Pakistan (concerned with the financial crimes of avoided tax, money laundering etc) against the family members of politicians (including Former PM Nawaz Sharif and former President Asif Zardari) will have be thrown in the dust basket.

 Alvi should further realize that like Iftikhar, the said top judicial community of Pakistan is trying to establish a very dangerous legal principle in Pakistan that –“when it comes to corruption / financial crimes, the politicians need to treated even harshly whereas judiciary (especially higher judiciary) need not be touched”.

 Alvi must be knowing that the hearing of petition of Judge Isa under Article 184 (3) of the Constitution is a clear case of distortion, by SCP of Constitutional provision,  for legally objectional purpose of protecting higher judiciary (which is under criminal inquiry & investigation by SJC under Presidential reference). The Article 184 (3) reads as - “Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article”.

 The case of India is quite educative in this regard. The writ petitions of habeas corpus (regarding most of the mainstream politicians of Kashmir valley who are in jail for the last over 6 months) if not heard by High Court of J&K then it may set a dangerous precedence and some day it may destroy the fundamental rights of ~ 1350 million Indians in rest of India too hence SCI should intervene. But the SCP conveniently forgot that these fundamental rights mention in Article 184 (3) of the Constitution of Pakistan are related to fundamental rights of most of the ~ 200 million people of Pakistan and not of a single Judge Isa.

 Therefore in view of the fact that in legally objectionable manner the coward & power hungry Prime Minister Imran Khan and coward Attorney General Anwar Mansoor Khan who have backed out from their earlier public positions against financial crimes (in this case of Judge Isa, under pressure of higher judicial community) hence will not do anything to protect & defend rule-of-law in Pakistan,  the President of Pakistan (directly involved in this controversy) should immediately issue a press release stating that - “[The office of President of Pakistan expects that the CJC should decide in the Presidential reference about Judge Isa, at the earliest possible, in the interest of buttressing the confidence of the people of Pakistan in rule-of law which means that no one is above law, including higher judiciary]”.

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