Taking up of out-of-turn reference against Justice Isa challenged

Updated August 18, 2019

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This is the third such petition before the SC under Article 184(3) of the Constitution as the previous two petitions had been filed by Justice Isa himself and the SCBA. — Photo courtesy Supreme Court website/File
This is the third such petition before the SC under Article 184(3) of the Constitution as the previous two petitions had been filed by Justice Isa himself and the SCBA. — Photo courtesy Supreme Court website/File

ISLAMABAD: Just a day after the Supreme Court Bar Association (SCBA) challenged the references against Justice Qazi Faez Isa and Justice K.K. Agha, senior jurist Abid Hasan Minto and former chairman of the Human Rights Commission of Pakistan (HRCP) I.A. Rehman approached the Supreme Court against the ‘arbitrary’ and ‘mala fide’ exercise of power by the Supreme Judicial Council (SJC) secretary in taking up the presidential references out of turn.

“Neither the Constitution nor the procedure regarding SJC hearing states any preference or priority for a matter referred by the president as opposed to information received from other sources,” argued the petition filed on Saturday.

This is the third such petition before the SC under Article 184(3) of the Constitution as the previous two petitions had been filed by Justice Isa himself and the SCBA.

Joint petition filed by senior jurist, ex-chairman of HRCP in apex court

Earlier on July 16, Mr Minto had written a letter to the SJC secretary posing five questions and also asking why the references against Justice Isa and Justice K.K. Agha of the Sindh High Court were taken out of turn.

The fresh petition contended that even if it was accepted that some priority was attached to a matter received from the president, the SJC secretary still acted in mala fide by taking up of the private reference and proceeding with it in great haste.

The petition regretted that no information was available in the public domain regarding total number of references, if any, pending against the present members of the SJC. Therefore, the petitioners argued, the SJC was not properly constituted for the out-of-turn hearing of references against Justice Isa and Justice Agha.

The SJC procedure of enquiry is also ineffective and vague since it refers to the Code of Conduct as the basis for removal of a judge despite the fact that even the code of conduct does not call itself a comprehensive document, according to the petition.

Thus, until a comprehensive code of conduct is framed, the petition contended, no judge should be removed unless the violation by the respondent judge was egregious and a clear violation of a well-articulated code that conformed to established undisputed legal standards.

The petition also regretted that no information was available to the public regarding 26 pending references before the SJC and the 398 cases that it disposed of. It informed the court that the SJC secretary ignored petitioner’s request for provision of very basic information regarding the matters disposed of by the council.

Referring to a private reference against Justice Isa for writing letters to the president, the petition contended that by no stretch of imagination, it was improper of a judge writing to his appointing authority and the head of the state, seeking clarification and information about an action that had been taken by the latter.

Besides, seeking information by writing letters to the president is protected by the judge’s right to due process guaranteed by Article 10A of the Constitution, the petition contended.

Similarly, no rules or a code of conduct can curtail person’s right, including that of a judge, of free speech under Article 19 of the Constitution, the petition argued, explaining that writing letters to the president by Justice Isa was his legitimate right that cannot be curtailed by an abstract and vague document, which calls itself as only an attempt at a code of conduct.

In the end, Mr Minto and Mr Rehman urged the apex court to declare the references before the SJC void in view of the alleged conduct of the SJC secretary ‘tainted with bias and mala fide’.

The petitioners also asked the court to declare that the SJC could not consist of members against whom matters were pending. They request the court to also hold that the procedure of inquiry by the SJC was arbitrary, ultra vires and bad in law by not providing any criterion for the order of taking up matters. The court wants the SC to declare that the SJC cannot function without a proper procedure in place.

The apex court should also direct the SJC not to take up the references out of turn unless cogent reasons were supplied to reasonable criteria, the petition said.

Therefore, it added, the SC should direct that matters against the two superior court judges be taken up on their turn after disposing of the matters already pending and in accordance with properly framed rules or procedure that comply with the law and the constitution and the general norms of justice. The apex court should also order the SJC to dispose of every reference filed before it and that unless a reference is dismissed, a judge is not entitled to receive post-retirement benefits irrespective of whether he or she retires or resigns during the pendency of references before the SJC.

Published in Dawn, August 18th, 2019