ISLAMABAD: The Supreme Court Bar Association (SCBA) has challenged the presidential reference against Justice Qazi Faez Isa, saying that the motive behind the initiative appeared to be the Feb 6 verdict in the Faizabad Dharna (sit-in) case in which the judge had asked the defence ministry and the three services chiefs to penalise personnel under their command found to have violated their oath by encouraging the protesters.

The sit-in took place in November 2017.

The fresh attempt is the second such petition before the Supreme Court since Justice Isa himself instituted a similar challenge before the apex court on Aug 7 by saying it seems as if the petition was moved by a proxy with mala fide intent to achieve a collateral purpose.

The fresh petition before the Supreme Court, under Article 184(3) of the Constitution, has been instituted by a panel of lawyers consisting of two former SCBA presidents, Hamid Khan and Rasheed A. Razvi, and Salahuddin.

However, the SCBA’s current president, Amanullah Kanrani, told Dawn that he would inform the media about the contents of the petition on Monday. Senior counsel Hamid Khan confirmed to Dawn that the petition had been filed on Friday.

The petition seeks to restrain the Supreme Judicial Council (SJC), which is seized with two references against Justice Isa, from further proceeding in the matter.

It also called for amending the SJC’s “procedure of enquiry” for ensuring transparency in the council’s working in a manner that complaints and references were taken up and processed expeditiously.

The SCBA named President Arif Alvi, the federal government through its law secretary, and the SJC as respondents.

It alleged that the “so-called complaints and information” against Justice Isa could only have been the result of a “covert and unauthorised surveillance or investigation by intelligence agencies and functionaries”. Covert surveillance of superior court judges and their families by state agencies amounts to granting them a licence to blackmail and pressure judges. Such a trend is disastrous for the judiciary’s independence, the petition observed.

The Supreme Court Bar Association argued that the Assets Recovery Unit (ARU) and its chairman had no legal status and authority to initiate investigation and direct state agencies like FIA or FBR to peek into confidential data about any person, let alone superior court judges.

The references are clearly based on ill-will and premised on deceit, mala fides and collusion, the SCBA said. “The move is thus non est, null and liable to be quashed forthwith.”

The petition stated that the president and the prime minister had not fulfilled their obligation under Article 209 of the Constitution to first satisfy themselves that an act of misconduct was ostensibly committed before sending the first reference and their failure to do so rendered the same non-est.

Section 116 of the Income Tax Ordinance does not require a person to declare the assets of his wife and children unless the same were virtually his own assets purchased through his own funds and merely being held in their name, the petitioners contended.

The alleged failure of Justice Isa’s wife or his children to declare certain properties in their wealth statements cannot give rise to a presumption that they were being held benami for Justice Isa or that he had breached any laws relating to money laundering and foreign exchange regimes, they added.

“As per our laws and religion,” the petition went on, “a man’s adult wife and children are not mere extensions of him and therefore Justice Isa is not personally answerable and liable for any act or omission on their part, nor to account for any asset they may own.”

Moreover, a judge and his family are equally entitled to due process of law under Article 10-A of the Constitution, including the benefit of the adjudication process prescribed under tax laws, the SCBA argued.

The selective leaking of contents of a presidential reference against a judge by the referring authorities was demonstrative of malice and rendered it liable to being voided, the petitioners observed.

An examination of additional facts and documents alien to the presidential reference and issuance of show-cause notice without allowing Justice Isa an opportunity to file any objection amounts to a breach of Articles 209 and 10-A of the constitution and renders the proceedings coram non judice, the Supreme Court Bar Association contended.

Published in Dawn, August 17th, 2019