SJC rejects private reference against SC judge

Updated August 20, 2019

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ISLAMABAD: The Supreme Judicial Council (SJC) on Monday rejected a second reference against Justice Qazi Faez Isa of the Supreme Court instituted by Waheed Shahzad Butt for writing letters to President Arif Alvi.

“The alleged impropriety in the private letters written by the respondent judge (Justice Isa) to the president has not been found by us to be serious or grave enough to constitute misconduct sufficient for his removal from the exalted office of a judge of the Supreme Court,” said an order issued by the SJC.

Senior council Hamid Khan, one of the lawyers who filed a petition on behalf of the Supreme Court Bar Association in the apex court, said only the private reference had been dismissed, while the presidential reference against Justice Isa for not disclosing in his income tax returns and wealth statements acquisition of three properties in the United Kingdom was still pending.

When asked, Rasheed A. Razvi, the mover of one of the petitions filed in the Supreme Court against the reference, said they might amend the pending petitions in the wake of the SJC order.

Presidential reference against Justice Faez Isa for not disclosing UK properties still pending before council

The SJC, which met briefly, explained in its order that the information provided by the informant (Waheed Butt) failed to convince that the three letters written by the respondent judge to the president were leaked to the media by the judge himself. Moreover, it said, Mr Butt appearing before the council in person on Monday was also not able to establish that Justice Isa revealed anything about his relevant letters to anybody.

Authored by Chief Justice Asif Saeed Khosa, who heads the five-member SJC, the order explained that in the absence of any material, the complexion of the information against the respondent judge underwent a metamorphosis, reducing it merely to writing of private letters by him to the president.

“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,” it noted.

About the contents of the letters, the order said, it could well be stated that after filing of the reference against the respondent by the president, the 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.

“The record shows that at the relevant time the respondent-judge was also under some stress because of the medical condition of his father-in-law and the daughter and that stress might have aggravated his sense of harassment and might have contributed towards outrunning of his discretion,” the order explained before dismissing the reference.

Referring to the reply furnished by Justice Isa before the SJC, the order explained that it was the council itself which issued show-cause notice to the respondent judge, adding that the allegation that SJC’s secretary entertains prejudice and bias against the respondent-judge was a bold allegation not substantiated through any material whatsoever.

“It is the council and not secretary which is to form opinion about the correctness of the allegations levelled against the respondent-judge. The question whether there was sufficient material available before the council for issuing show-cause notice to Justice Isa was a question to be determined by the council and not by the respondent-judge.

“Similarly, the stated premise on which letters were written to the president by Justice Isa was factually incorrect, besides dragging of the prime minister, his different spouses and children into the matter was distasteful and the basis of levelling allegations against a number of persons regarding leaking information about the reference was nothing but presumptive. In these circumstances, SJC found sufficient basis for issuing show-cause notice to Justice Isa,” the order explained.

The SJC, it said, was ordinarily focused on the correctness and seriousness of the allegations of misconduct of a judge and not the credentials or antecedents of the informant. Moreover, the respondent-judge also failed to refer anything concrete or substantial to bring in doubt the credentials or motivations of the informant in the second reference.

Likewise, the order explained, the assertion of the respondent-judge that the present information against him had been taken up by the council out of turn was merely speculative, adding that all the information/complaints filed under Article 209 of the Constitution were taken up for consideration immediately and at one given time many information/complaints so received were passing through different stages of the process contemplated by the Supreme Judicial Council Procedure of Enquiry 2005.

“During the pendency of the present information many other information/complaints which were already in process have since been disposed of and during the interregnum period many others have been received which were in process. Presently, only about half a dozen other information/complaints are pending before the council and while being actively attended to, they are passing through different stages of the requisite process.

“Finally, writing of a letter by a judge to the president may not ipso facto amount to misconduct on the part of the judge but if, inter alia, the premise on which the letter is written is demonstrably against the facts, the letter has a tendency to generate a public controversy involving the judge or the president, or the letter is written and allegedly leaked to the media in order to create support or sympathy in the public at large so as to influence a matter pending before a constitutional body like this council, then an inquiry into the conduct of such a judge may be in order,” the order explained.

Published in Dawn, August 20th, 2019