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August 8, 2019

Justice Isa challenges presidential reference in SC

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August 8, 2019

ISLAMABAD: Senior Judge of the Supreme Court (SC), Justice Qazi Faez Isa on Wednesday challenged before the SC the presidential reference fled against him for allegedly not disclosing his foreign properties in his wealth returns.

Justice Isa while invoking Article 184(3) of the constitution filed the most awaited petition in the Supreme Court challenging the reference filed against him by President Arf Alvi in the Supreme Judicial Council alleging that the judge owns properties in London which he did not disclose in his wealth statement.

The News broke the said story in its July 31 edition, revealing that Supreme Court Judge Justice Qazi Faez Isa is likely to challenge the presidential reference against him in the Supreme Court by invoking Article 184(3) of the Constitution.

On Wednesday Justice Qazi Faez Isa went personally to the Institution Branch of the Supreme Court and filed the petition under Article 184 (3) of the constitution praying the apex court to declare that the Presidential Reference and the complaint seeking his removal by writing to the President are not maintainable and non-est and dismiss the same.

He also prayed the apex court to restrain the Supreme Judicial Council from the proceeding in the Presidential and in the Reference of Waheed Shahzad Butt till the disposal of his (Justice Isa) petition. It is pertinent to mention here that a Lahore based lawyer Waheed Shahzad Butt had filed a complaint with the Council and had submitted that Justice Qazi Faez Isa had violated the code of conduct for members of the judiciary by writing letters to the president of Pakistan and sharing them with the media. Butt had submitted that prima facie, it appears that Code of Conduct to be observed by the Judges of Supreme Court requires His Lordship Justice, Qazi Faez Isa to demonstrate highest qualities of intellect and character but while writing letters to the President of Pakistan and sharing it with the media, Justice, Qazi Faez Isa appears to have committed gross misconduct and is liable to be removed.

The SJC is the only constitutional authority mandated by Article 209 of the Constitution of Pakistan to conduct inquiries into allegations of incapacity or misconduct against a judge of the Supreme Court or of a high court. Last month on July 18, the Supreme Judicial Council had issued two show cause notices to Justice Isa on allegedly holding undeclared foreign properties and sending letters to President Arif Alvi. Justice Isa was mandated to give his response on the show cause notice within 14 days. In May, President Arif Alvi had filed the references against Justice Isa and Justice KK Agha of Sindh High Court for owning properties in London but they did not disclose it their wealth statements.

In his petition, Justice Isa further prayed to declare that presidential reference and the complaint seeking his removal are mala fide, filed with malice aforethought, filed for ulterior motives and to achieve a collateral purpose and therefore are not maintainable and liable to be dismissed. Similarly he prayed to declare that in-camera proceedings of the Supreme Judicial Council in the context of this case are without lawful authority and in breach of fundamental rights. The 70 page petition drawn, drafted and filed by Justice Qazi Faez Isa himself has made President of Pakistan, the Federation through the Secretary Law and Justice Division, Prime Minister Imran Khan, Federal minister for Law Dar Farogh Nasim, Attorney General Anwar Mansoor Khan, the Supreme Judicial Council, through its Secretary, Registrar Supreme Court Arbab Arif, Mirza Shahzad Akbar, Zia ul Mustafa Nasim, legal expert, Abdul Waheed Dogar, Complainant in Special Reference No 1 and Waheed Shahzad Butt, Complainant in Reference No 427/2019/SJC as respondents.

Similarly, he also made Pakistan Bar Council through its Secretary and Supreme Court Bar Association (SCBA) through its President as Proforma Respondents against whom Justice Isa has not sought any relief. Soon after Justice Isa challenged the Presidential Reference in the Supreme Court, the Supreme Court Bar Association (SCBA) also announced to challenge the presidential references filed against Justice Qazi Faez Isa and Justice KK Agha of the Sindh High Court. The SCBA President Amanullah Kanrani in a press conference in Quetta announced challenging the presidential references in the Supreme Court, adding that former presidents of the Supreme Court Bar Association will be in the panel of lawyers in the said petition. Last week he had told The News that after Justice Isa files the petition in SC, he will also file the said petition the next day in the Supreme Court.

Meanwhile, in his petition, Justice Qazi Faez Isa questioned as to whether the constitutional guarantees of due process and fair trial and freedom of expression and right to information (Articles 10-A, 19 and 19A of the constitution respectively) were violated by those who prepared, filed and are pursuing the Presidential Reference and the reference filed by Waheed Shahzad Butt and as such these references should not have been entertained and proceed with by the Council? “Whether (with utmost respect) the Council in proceeding during summer vacations, when the petitioner is on sanctioned leave, prioritizing the reference filed against him alone and by not following the standard practice of first-in-first-out, violated the constitutional guarantee of due process and fair trial and rules of natural justice”, Justice Isa questioned.

“Can the Council in assuming FBR’s powers and jurisdiction and also that the appellate for a provided under the Income Tax Ordinance 2001, including that the Supreme Court of Pakistan, acted contrary to the law and the constitution?” Justice Isa further inquired.

He submitted that he is not answerable for his wife or adult children nor he is under any obligation to disclose any information concerning them. However, the government team through half-truths and innuendos has made his life and that of his family a living hell. Justice Isa contending that the Presidential Reference is not maintainable added that he had raised fundamental questions about the maintainability of the said reference with the contention that the Prime Minister did not personally satisfy himself about the veracity of the compliant nor formed his own independent opinion. He contended the requisite approval of the cabinet was not taken, the president did not personally examine the material and did not form his own opinion that the allegation of misconduct was made out.

He further submitted that the complaint was filed for mala fide reasons, with ulterior motives and to achieve a collateral purpose adding that its filing and contents were disclosed and illegally disseminated to harass, defame and humiliate him and his family. “The facts establish that the Presidential Reference and the other complaints are mala fide and filed with ulterior motives to remove him as he is perceived as a hurdle in the Executive’s exercise of unfettered and unchecked power”, Justice Isa contended adding that like many of his colleagues he has demonstrated that irrespective of the consequences to person or family he will abide by the oath to uphold the constitution and act without fear and favor.

Justice Isa submitted that one Waheed Shahzad Butt wrote a letter to the Council on June 12, 2019 alleging that writing letters to the president of Pakistan and sharing it with the media constitutes gross misconduct. “Mr Butt did not produce an iota to proof, let alone establish, that I had released any letter to the media”, Justice Isa contended and termed the allegation false and absurd and denied as well.

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