PBC moves SC over SJC case against judge

Updated August 22, 2019

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The Pakistan Bar Council (PBC), the apex statutory authority of lawyers, on Wednesday filed a petition in the Supreme Court challenging the filing of the reference against Justice Qazi Faez Isa by President Dr Arif Alvi. — Photo courtesy SC website/File
The Pakistan Bar Council (PBC), the apex statutory authority of lawyers, on Wednesday filed a petition in the Supreme Court challenging the filing of the reference against Justice Qazi Faez Isa by President Dr Arif Alvi. — Photo courtesy SC website/File

ISLAMABAD: The Pakistan Bar Council (PBC), the apex statutory authority of lawyers, on Wednesday filed a petition in the Supreme Court challenging the filing of the reference against Justice Qazi Faez Isa by President Dr Arif Alvi.

The present petition is the fourth petition challenging the filing of the reference against Justice Isa. The first was filed by the respondent judge himself, the second by the Supreme Court Bar Association and the third by eminent lawyer Abid Hassan Minto and human rights activist I.A. Rehman.

The PBC petition alleges that the recent conduct of the SJC has given rise to a perception among the legal fraternity that the council may not be immune to outside influences. Therefore it is for the Supreme Court itself to consider, determine and address lingering doubts, through an open full court hearing, and ensure that neither the judicial institutions nor individual judges are subjected to insidious attacks and pressures from any quarter.

The petition apprehends that the ouster of Justice Isa who authored the Feb 6, 2019 judgement against the Nov 2017 Faizabad sit-in by the Tehreek-i-Labbaik Pakistan (TLP) through the reference would preclude him from hearing a set of review petitions against the verdict.

The PBC in its petition argues that it is not appropriate for the chief justice to be part of the SJC in view of the deliberations made between him and Justice Isa. In its Aug 19 order of dismissing another reference against Justice Isa, the SJC had mentioned a meeting between the chief justice and the judge.

The petition alleges that the animus and ill will borne within the executive towards Justice Isa has been corroborated by the rejoinder filed by Attorney General Anwar Mansoor, who appeared before the SJC as prosecutor, in which Justice Isa’s conduct was alleged to be “stealthy,” “false,” “misleading” and “portraying a face of integrity, which is far removed from reality.”

The rejoinder also accused the judge of a “lack of patience,” of craving “self-praise and cheap publicity” and trying to “sensationalise” the matter and above all, suffering from “two mental issues namely “self-persecution phobia” and considering himself “a legend”.

It is a known fact that proceedings before the SJC, the petition argues, are not adversarial and the AG has to assist the council to ascertain, without bias or desire, whether or not the judge has committed misconduct.

But it is astonishing that in the rejoinder, instead of determining whether Justice Isa has complied with Section 116 of the Income Tax Ordinance 2001, the government and the AG felt it necessary to besmirch not only his character but also his mental health, the petition alleges.

Such objectionable language otherwise not expected of the office of the AG can only reasonably be said to reflect a much deeper unstated grievance, the petition alleges, adding that this must be said to be the basis of malice and ill will caused by the independent exercise of power by Justice Isa through the rendering of the Faizabad judgement.

Thus when the AG may chose to become an independent complaint, he would be unfit to conduct the pending reference as prosecutor because the office of the AG is a constitutional office that is required to be non-political and non-partisan, it says.

Indeed the sensitivity of the government and its different agencies to any criticism of its handling of the TLP’s Faizabad sit-in is well known, the petition alleges.

It asks the SC to declare that the reference has been filed for collateral purposes and is mala fide in law and discriminatory. It also requests the court to restrain the proceedings of the SJC with a directive to amend the SJC Procedure of Enquiry for ensuring greater transparency in its working. The petition contends that the Code of Conduct for the judges cannot be interpreted in a manner to curtail the rights of the judges under Article 19 and 19-A of the Constitution.

It also asks the apex court to declare that the SJC is not competent to declare that an asset which is in the name of an individual is benami without making that individual a party to the proceedings.

At the same time, the jurisdiction of the SJC does not extend to individuals who are not judges, including the adult children of Justice Isa and his non-dependent wife, the petitiwon contends.

Published in Dawn, August 22nd, 2019