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August 29, 2019

SHCBA challenges reference against Justice Isa in SC


August 29, 2019

ISLAMABAD: Another petition was filed in the Supreme Court (SC) on Wednesday, challenging the Presidential Reference filed against Justice Qazi Faez Isa for allegedly having foreign properties not being disclosed in his wealth statements.

The petition was filed by Sindh High Court Bar Association (SHCBA) through its president Muhammad Aqil invoking Article 184(3) of the constitution.

The petitioner made President of Pakistan, Supreme Judicial Council (SJC) through its Secretary/Registrar, Federation of Pakistan through Secretary Law and Justice and Registrar, Supreme Court of Pakistan as respondents.

Filed through Rashid A Rizvi, senior advocate of the Supreme Court, the petitioner contended that the Reference is not maintainable because no prima facie case of misconduct has been made against Justice Isa.

It was submitted that the reference is an attempt to subjugate the judiciary and its independence. It has been referred against Justice Isa for collateral purposes and are mala fide in law and/or in fact and are non est.

The petitioner prayed to the apex court to declare that any proceedings in relation thereto by the SJC in relation to the same are void, discriminatory and corum non judice and liable to be set aside.

It also prayed to restrain the SJC from proceeding further in the said reference besides directing 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.

It further prayed that in any event, without prejudice to and independently of the foregoing, this court may be pleased to take action against the complainant and his accomplices as provided in the Supreme Judicial Council Procedure of Enquiry, 2005 since the reference is false, frivolous, concocted and untrue.

The Sindh High Court Bar Association questioned as to whether any judicial criticism of the role of any government institution which is violative of trichotomy of power is ground for removal of a Judge.

It further questioned as to whether judges of the Superior Courts (or their families) can be subjected to surveillance or investigation by any state functionary on the pretext of collecting information regarding misconduct without prior reasoned approval in writing from the Prime Minister and President.

The petitioner recalled that Justice Isa in his judgment reported in PLD 2019 SC 318 directed the state institutions to investigate whether their officers violated their oath by meddling in politics.

Whether subjugation of the judiciary by dictators and compromises made by judges whilst rendering judgments like Maulvi Tamizuddin cases are historical facts and in order to move beyond, judges must publicly face the same rather than hide behind illusory fig leaves. Reliance is placed on the case SHCBA vs Federation of Pakistan & others (PLD 2009 SC 879).

“The hostile language employed in several of the review petitions is further proof”, the petitioner contended adding that the subject reference drips with malice and is patently a colourable exercise of power aimed at punishing Justice Isa for the Faizabad judgment.

“If it succeeds, it will have devastating consequences for the independence of judiciary and will teach future generations of judges that there are certain areas and certain quarters within government that are not (regardless of the law and Constitution) amenable to criticism or correction”, the petitioner contended. It further submitted that there was no material before the prime minister or president to objectively justify forwarding the subject reference to the SJC.

“Their act of doing so was not only mala fide in law but motivated by actual malice against Justice Isa in the circumstances already explained and for collateral purposes”, the petitioner added.

It is pertinent to mention here that Justice Qazi Faez Isa had also challenged before the Supreme Court the Presidential Reference and recently he had moved the apex court to fix his constitutional petition along with all pending applications before the full-court comprising of all the eligible judges of the apex court.