ISLAMABAD: The Sindh High Court Bar Association (SHCBA) has also joined the fray by instituting yet another challenge to the filing of a presidential reference against Justice Qazi Faez Isa of the Supreme Court on Wednesday.

Moved through senior counsel Rasheed A. Razvi on behalf of the SHCBA, the petition requests the Supreme Court to order action against the complainant and his accomplices as provided in the Supreme Judicial Council (SJC) Procedure of Enquiry 2005 for allegedly filing of a false, frivolous, concocted and untrue reference.

With the filing of this petition, the number of pending petitions on the issue in the apex court has risen to five with earlier petitions moved by Justice Isa himself, the Supreme Court Bar Association, Pakistan Bar Council and eminent jurist Abid Hassan Minto and rights activist I.A. Rehman.

Meanwhile, after retirement of Justice Sheikh Azmat Saeed on reaching superannuation on Tuesday, the composition of the five-member SJC stands automatically changed with Justice Mushir Alam taking place of Justice Saeed.

After retirement of Justice Azmat Saeed, composition of five-member SJC has changed with Justice Mushir Alam replacing the former

Earlier, the council comprised of Chief Justice Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Azmat Saeed, Chief Justice of the Sindh High Court Ahmed Ali M. Shaikh and Chief Justice of the Peshawar High Court Waqar Ahmed Seth.

In the fresh petition, the SHCBA has requested the Supreme Court to order the SJC to amend the inquiry procedure in such a way that greater transparency is assured in the working of the SJC by structuring the discretion of the body with respect to the manner that complaints or references are taken up for hearing.

The petition has specifically asked the apex court to declare that the presidential reference was filed against Justice Isa for collateral purposes and was mala fide in law and fact and thus without legal basis.

Moreover, any proceedings by the SJC should be held by the apex court as void, discriminatory and, therefore, liable to be set aside.

The petition asks for a directive to restrain the proceedings of the SJC against Justice Isa, stating that a bare reading of the reference manifests that the judge failed to declare three properties in the UK in his wealth statement. But the reference does not allege that Justice Isa provided money to purchase these properties, nor does it produce any proof in his regard.

The petition says that the reference does not allege that the properties are owned by Justice Isa or that Justice Isa’s wife and children are his dependents.

After going through the reference, the petition contends, it becomes clear that the complaint is an attempt to subjugate the judiciary and its independence and it has been filed only for mala fide reasons with ulterior motives and for a collateral purpose.

Therefore, the reference is not maintainable for the reason that the president allegedly did not form independently his opinion rather acted on the advice of others before filing the reference, the petition argues. Moreover, the references was not placed before the federal cabinet for its approval, thus on this score alone the reference stands not maintainable.

The petition recalls that the only allegation against Justice Isa is that he did not comply with Section 116 of the Income Tax Ordinance (ITO) 2001. It argues that section 116 of the ITO governs filing of wealth statements and has two parts. The second part binds all resident taxpayers to file a wealth statement listing their own assets and liabilities. The first part, however, states that if the tax commissioner sends a notice to a taxpayer in this regard, the latter must list his spouse, minor children and other dependents’ assets in addition to his own. Apparently, no such notice was sent to Justice Isa, and if so, he did not need to declare them, the petition says.

If assumed, as alleged, that Justice Isa did not comply with Section 116, it still does not mean that he is guilty of misconduct, the petition contends, adding that misconduct of a judge must relate to his calling, his work, misuse of his office as a judge and not matters which are not connected.

If a judge has not filed his income tax return, he would still not be guilty of misconduct, the petition argues, adding that a judge, like every other citizen who has not complied with the law, is to be dealt with in accordance with the law.

The code of conduct for judges also does not state that the mere breach of any law by a judge constitutes misconduct, the petition says.

It alleges that the reference is primarily motivated by the authorship of the Faizabad judgement by Justice Isa, which aroused resentment on part of the ruling parties and within the visible and invisible branches of the government/establishment.

Published in Dawn, August 29th, 2019