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June 13, 2019

Text of ex-CJP Iftikhar Ch’s letter to SJC: NON-MAINTAINABILITY OF THE REFERENCE

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June 13, 2019

(i) The President of Pakistan has sent the above Reference under Article 209(5)(b) of the Constitution which prescribes, inter alia, that "if... the President is of the opinion that a Judge of the Supreme Court or of a High Court ... may have been guilty of misconduct the President shall direct the Council to ... inquire into the matter".

(ii) 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".

(iii) In exercise of the powers conferred under Articles 90 and 99 of the Constitution, the Federal Government

has made `the Rules of Business, 1973' (amended from time to time).

(iv) According to Rule 15-A(1) of the Rules of Business (heading Reference to the President), read with Item No.35 of Schedule V-B (heading Reference to the Supreme Judicial Council), "notwithstanding the provisions made in these rules where in terms of any provisions of the Constitution any function is to be performed or any orders have to be issued by the President or his specific approval is required, the Division concerned shall incorporate a paragraph to this effect in the summary titled as "Summary for the Prime Minister". The Prime Minister shall render his advice and submit the case to the President. After the President has seen and approved the case, it shall be returned to the Prime Minister. The cases to which this sub-Rule applies are enumerated in Schedule V-B".

(v) The information about filing of above Reference has been leaked to Media by the concerned quarters of the Government and a copy whereof is available for perusal of the general public. The following para therefrom is relevant to object the maintainability of the Reference: -

"17. Hence, the Law Division submitted a Summary for the Prime Minister after concurrence of the learned Attorney General for Pakistan. Upon the said Summary the Prime Minister of Pakistan has advised the President of Pakistan to act in terms of Article

209(5) read with Article 48 of the Constitution. "

(vi) The relevant Article of the Constitution provides as under:

(i) Article 90 Exercise of Executive Authority of the Federation

(ii) Article 91 Deals with the Cabinet

(iii) Article 99 Conduct of business of Federal Government

(vii) The apex Court has interpreted the above Articles in the case reported as Messrs Mustafa Impex, Karachi

v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808) and concluded as follows:­

"(ii) The Federal Government is the collective entity described as the Cabinet constituting the Prime Minister and Federal Ministers.

(iii) Neither a Secretary, nor a Minister and nor the Prime Minister are the Federal Government and the exercise, or purported exercise, of a statutory power exercisable by the Federal Government by any of them...........

(viii) The above interpretation of Apex Court has not been complied with, firstly by the Prime Minister, as without

discussing and seeking approval of the Cabinet same was forwarded to the President. Therefore, in view of above law laid down by the Supreme Court the Reference for want of Constitutional provision noted above is unwarranted thus not compliance of maintainable.

(ix) Secondly, the President also failed to reject the Reference for above reasons and forwarded the same unconstitutionally to the learned SJC.

(x) The Reference being not maintainable be rejected.

B. VIOLATION OF CODE Of CONDUCT:

(i) Under Article 209(8) of the Constitution, the Supreme Judicial Council has issued a `Code of Conduct' to be observed by the Judges of the Supreme Court and of the High Courts to `indicate certain traditional requirements of behavior in the Judges of the Superior Courts, conducive to the achievement of a standard of justice worthy of the nation'.

(ii) In the Reference It has not been stated anywhere that the learned Judge has allegedly violated any, Article of the Code of Conduct, except referring opening words of Articles II and III which reads as under:­

"13. One may look into Article II of the Code of Conduct for Judges of the Supreme Court and the High Courts contained in Notification bearing No.F. Secretary-01/20A09/SJC (hereafter "the Code of Conduct"), which, inter alia, provides that " A judge should be.... blameless....". Furthermore, Article III of

the Code of Conduct states that a Judge is '....to keep his conduct in all things official and private, free from impropriety..... "

(iii) The above para. read with the whole contents of the 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. Therefore, under no circumstances or any law, the referring authority can allege that he has violated "the Code of Conduct". Importantly, a judge is responsible for his own conduct and not for the conduct of his non-dependent children and spouse, under the law.

C. VIOLATION OF OATH:

The Prime Minister and the President, as per the requirements of their oath under Articles 42 and 91(5) of the Constitution, are bound, directly or indirectly, not to communicate or reveal to any person any matter which shall be brought under their consideration or shall become known to them except as may be required for the due discharge of their duties, respectively. Whereas, in the instant case, before commencement of proceedings by the SJC on the Reference, the contents whereof along with few documents, have been made public, due to which the learned Judge as well as the Institution i.e. Judiciary, as a

whole, has been scandalized; therefore, proceedings as required under the Constitution and the law may be ordered to be initiated against them.

D. PRAYER:

(i) The Reference, being against constitutional provisions false, untrue, without substance and motivated, may not be entertained and be rejected Melafiede without further proceedings.

And

(ii) Action against the President and the Prime Minister as provided under Rule 14 of "the Supreme Judicial Council Procedure of Inquiry 2005" may also be recommended.

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