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August 17, 2019

SCBA challenges SC references against Justice Isa

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August 17, 2019

ISLAMABAD: The Supreme Court Bar Association (SCBA) on Friday challenged the references filed against senior Judge of the Supreme Court (SC) Justice Qazi Faez Isa for allegedly having foreign properties as well as writing letters to the President of Pakistan.

SCBA President Amanullah Kanrani challenged in the Supreme Court the two references while invoking Article 184(3) of the Constitution, praying to restrain the Supreme Judicial Council (SJC) from proceeding further in the said references.

He made the President of Pakistan through Principal Secretary, the Federation of Pakistan, through the Secretary, Law and Justice Division and Supreme Judicial Council, through its Secretary as respondents.

The SCBA prayed to the apex court to declare that Special Reference No1 of 2019 and Reference No 427 of 2019 are filed for collateral purposes and mala fide in law and fact and are non est and without legal basis and also prayed to declare that any proceedings by the SJC in relation to the same are void, discriminatory and corum non judice.

The SCBA president also prayed to direct the SJC to amend the SJC Procedure of Enquiry to provide greater transparency in the working of the SJC in line with the suggestions made and to structure the discretion of the SJC with respect to the manner that complaints/ references are taken up and processed.

The petition mentioned in detail Faizabad dharna case judgment authored Justice Isa which had criticised the organisers of the sit-in. The SCBA president recalled that the judgement had also mentioned interference in the media affairs.

The references/ complaints against Justice Isa have been preferred for collateral purposes and are mala fide in law and/or in fact and are non est, the petitioner submitted. “That two references are being pursued against a Supreme Court judge, Justice Qazi Faez Isa; the contents and proceedings of which have reached the public domain,” the SCBA submitted.

He said that he is also a respondent in a petition filed by Justice Isa before the Supreme Court challenging the same. “Upon careful consideration, the petitioner is of the view that these references – while cloaked in pious proclamations of accountability – are actually rooted in mala fide of fact and law”, Kanrani contended adding that these references, in fact, are an outcome of a joint and systematic attempt being made to intimidate judges into subjugation and permanently fetter the independence of the judiciary.

The SCBA contended that the so-called complaint and information against Justice Isa could only have been the result of covert and unauthorised surveillance or investigation. It contended that the Assets Recovery Unit and its Chairman have no legal status and authority to initiate investigation and direct state agencies like the FIA or FBR to share confidential data regarding any person (let alone superior court judges).

The petitioner further submitted that the president and prime minister under Article 209 did not form their own objective and bona fide opinion that an act of misconduct was ostensibly committed before sending the first reference and their failure to do so renders the same non est.

It further submitted that section 116 of the Income Tax Ordinance does not require a person to declare the assets of his wife and children unless the same are in fact his own assets purchased through his own funds and merely being held benami in their name.

As per our laws and religion, a man’s adult wife and children are not mere extensions of his. He is not personally answerable and liable for any act or omission on their part nor to account for any asset they may own.

The petitioner submitted that the selective leaking of contents of a presidential reference against a judge by the referring authorities (or their subordinates) is demonstrative of malice and renders the same liable to quashment.

It contended that neither the AG nor the SJC possessed any power to enlarge the scope of inquiry being carried out pursuant to a presidential reference to matters beyond the allegations in the reference itself.

“The SJC’s consideration of additional facts and documents alien to the presidential reference while deciding to issue show cause notice and without allowing Justice Isa an opportunity of objection amounts to a breach of Article 209 and Article 10-A of the Constitution and renders the proceedings corum non judice”, the SCBA contended.

It further submitted that the issuance of show cause notice for writing a letter to the President of Pakistan undermines the autonomy of individual Supreme Court judges who are all equal (with the Chief Justice only being first amongst equals) and relegates them to the status of government servants of subordinate rank in a departmental hierarchy.

A superior court judge is not bound by rules applicable to government servants regarding official communications. A chief justice is required to properly guide and advise his fellow judges in questions relating to the propriety of any act. As such, a judge cannot be penalised if he exercises his discretion in a matter of propriety after consultation with the Chief Justice, the petitioner submitted.

The SCBA further submitted that the independence of judges must be protected not only from any possible encroachment from the executive but also from any possible encroachment by their peers and seniors including members of the SJC.

The manner in which the reference against Justice Isa have been proceeded appears discriminatory and in violation of Article 25 of the Constitution and has created an impression of bias, the petitioner contended, adding that it appears from the record that the show cause notice in the second case of addressing letter to the president was issued without following the process and procedure laid down under SJC Procedure of Inquiry 2005.

There appears to be a clear violation of Paras 7, 8, 9 and other relevant Paras of the said Rules of 2005, the SCBA submitted adding that in any event, the advice of the prime minister to file a reference against Justice Isa was tainted by mala fide of law and fact. It said that the opinion of the president as to the prima facie commission of misconduct and his direction to the SJC for inquiry was similarly tainted with mala fide of fact and law.