SJC quashes misconduct reference against Justice Isa for writing letters to president

Updated August 19, 2019

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Supreme Court's Justice Qazi Faez Isa. — Photo Courtesy SC website
Supreme Court's Justice Qazi Faez Isa. — Photo Courtesy SC website

The Supreme Judicial Council (SJC) on Monday quashed a misconduct reference against Justice Qazi Faez Isa for writing multiple letters to President Arif Alvi to seek information about another reference earlier filed against him.

While dismissing the reference, the five-member SJC headed by Chief Justice Asif Saeed Khosa declared in its judgement that the council — due to multiple factors — did not find the matter of Justice Isa writing letters to the president "serious or grave enough to constitute misconduct sufficient for his [Justice Isa's] removal from the exalted office of a judge of the Supreme Court".

A reference had been instituted in May this year against Justice Isa, accusing the judge of concealing his properties in the United Kingdom allegedly held in the name of his wife and children. After news of the reference hit TV screens, the judge wrote multiple letters to President Alvi, asking him to confirm whether the reports were true.

Comment: Scrap reference against Justice Isa

The judge had complained that selective leaks of the reference to the media amounted to his character assassination, thus jeopardising his right to due process and fair trial. He had also sought a copy of the reference.

Later, a lawyer from Lahore, Waheed Shahzad Butt, filed a reference before the SJC against Justice Isa. In this second reference filed under Article 209 of the Constitution, the judge was accused of violating the Code of Conduct for judges by writing letters to President Alvi.

On Monday, the SJC in its decision on the second reference noted that Justice Isa had admitted writing of the three letters but denied leaking the same to the media.

"The purpose or the contents of such letters might appear to some to be oblique or objectionable but such letters were merely private letters not shown to be meant or intended to be read by anybody other than the addressee and those to whom they had been copied," the verdict, a copy of which is available with DawnNewsTV, said.

"As regards the contents of the said letters it could well be that after filing of the reference against him by the President, the respondent judge might have subjectively felt a sense of persecution at the hands of those whom he suspected and in that subjective sense of hounding he might have overstepped the sense of propriety vis-à-vis the contents of the letters written by him."

According to the judgement, record showed that at the time of the filing of the reference, Justice Isa was under some stress because of the medical condition of his father-in-law and daughter, [the stress of which] might have aggravated his sense of harassment and might have contributed towards outrunning of his discretion.

"In this view of the matter the alleged impropriety in the private letters written by the respondent judge to the president has not been found by us to be serious or grave enough to constitute misconduct sufficient for his removal," read the order.

Justice Isa read the reference

The SJC in its decision also addressed all 11 points raised by Justice Isa in response to a show-cause notice issued to him and declared them unfounded.

It stated that Chief Justice Khosa had shown a copy of the reference to Justice Isa and provided the judge enough time to take notes of the reference against him.

According to the judgement, soon after receiving the reference filed by the president against Justice Isa, the registrar of the Supreme Court (who is also the SJC secretary) brought the said reference to the chief justice’s chamber for the latter’s information and perusal because the chief justice is also the chairman of the council.

"After perusal of the reference and brooding over the matter the chief justice thought it fit to straightaway informally apprise the respondent judge of filing of the reference and of the contents of the same.

"The respondent judge was then contacted by the chief justice on intercom with a request to come over to the chief justice’s chamber which the respondent judge was kind enough to do. The chief justice then informed the respondent judge about receipt of the reference from the president and asked him to read the same for his information. The respondent judge then sat down and read the entire reference and took his time in doing so."

While reading the allegations against him, the judge asked for a paper and pencil for taking notes which were supplied to him by the chief justice personally, according to the judgement. Once done, Justice Isa said he wanted to write to the president to ask for a copy of the reference, but he was told by the chief justice that under the Constitution the president could require the SJC to inquire into the conduct of a judge but that he (the president) was not obliged to provide a copy of the reference to the judge, the verdict said.

Justice Isa then requested the chief justice to provide him a copy of the reference, but Justice Khosa told him that it was not for the chief justice but for the SJC to provide the reference's copy to the judge if and when the council felt persuaded to proceed against him.

"At this the respondent judge expressed his determination to write to the president on the subject and asked [Justice Khosa] whether such a letter should be routed through the chief justice or the registrar of the Supreme Court or it should be written directly to the president, to which the chief justice said that he had never written such letters and, therefore, he was not in any position to advise the respondent judge in that regard."

"The chief justice added that writing of such a letter might unnecessarily complicate things," the judgement read.

According to the decision, "The three letters written by [Justice Isa] to the president clearly stated that till the writing of those letters the respondent judge did not know whether any reference had actually been filed by the president against him or not and in any case he was unaware of the contents of and the allegations levelled in any such reference, if filed.

But it said the aforementioned meeting of Justice Isa with Chief Justice Khosa "shows that the respondent judge not only knew about filing of the reference against him but also about the actual contents thereof and the allegations levelled therein before he had started writing successive letters to the president on the subject, professing his ignorance about the same".

The verdict also addressed a point taken up by Justice Isa concerning Prime Minister Imran Khan in a letter to the president, stating: "Dragging the prime minister and his different spouses and children into the matter through such letters was in bad taste, to say the least. An allegation of misconduct levelled against a judge could not be offset through an oblique allegation levelled by the judge against some other constitutional functionary."

Legal observers believe that the current campaign against Justice Isa was launched after he authored a strongly worded judgement in February in a case relating to the November 2017 Faizabad sit-in by the Tehreek-i-Labbaik Pakis­tan, directing the defence ministry and chiefs of the army, navy and air force to penalise the personnel under their command found to have violated their oath.