ISLAMABAD: A senior counsel defending Justice Qazi Faez Isa pleaded before the Supreme Court on Monday to lay down principles defining procedures for forwarding references to the Supreme Judicial Council (SJC) against superior court judges on misconduct or no one will be secured in future.

Rasheed A. Razvi, who was representing the Sindh High Court Bar Association and the Pakistan Federal Union of Journalists, contended that to “err is human and being human beings we all make mistakes, but we expect that whatever happened in the SJC during the past two years will not be repeated” with the change in its composition.

With the retirement of former chief justice of Pakistan Asif Saeed Khosa, Justice Umar Ata Bandial, who is now heading a 10-judge Supreme Court full court hearing a set of challenges to the filing of the reference against Justice Isa, has now become a member of the SJC.

The counsel recalled that when the reference against Justice Isa was filed, it was numbered 476, which means there were many other references filed before the complaint against Justice Isa came up. But except two or three, all these references were disposed of and “despite our efforts to get certified copies of the orders of the decided matters, we could not lay our hands on any of them when the order against Justice Isa or Justice Shaukat Aziz Siddiqui was uploaded on the Supreme Court website soon after they were passed”.

Counsel defending Justice Isa claims president moved reference without ‘applying his mind’

The counsel argued that the reference against Justice Isa was moved without “application of mind on part of the president” and while reading it one noticed that the president did not even go through the entire reference when it came before him for affixing his signature.

It is a tragedy that the president did not even read the reference before sending it to the SJC, the counsel said, adding that the reference did not explain when and from whom the president had received it.

Moreover, although the reference cited an earlier case of Justice Shaukat Ali, it did not mention the 2010 Iftikhar Muhammad Chaudhry case at all where steps were laid down before filing the reference.

“If you read paragraph seven of the reference,” the counsel argued, “you will find that it used the word ‘learned’ for the Assistant Commissioner of Income Tax, but did not use the same for the judge against whom the complaint was filed.” It is a common norm that judges or senior lawyers are addressed by using the word ‘learned’.

“This shows the mental capacity,” the counsel argued, adding that the president violated his own oath of office to protect and preserve the independence of the judiciary while signing this reference.

The entire reference is a summary prepared by the ministry of law and while going through paragraphs 1 to 17, one noticed that the entire document was in violation of the directions set out by the Supreme Court through its judgement in the Iftikhar Chaudhry case on how to initiate a complaint.

Justice Bandial, however, observed that the Supreme Court will find out from the other side when the Attorney General will respond to the arguments made by lawyers why these directions were ignored while initiating the reference.

But Justice Bandial wondered whether the president was independent of the advice of the executive under Article 48 of the Constitution, particularly in view of the fact that the government was the biggest litigator, and whether it has the locus standi to file the reference or not.

If there is an advice from the prime minister, it was based on mala fide, the counsel replied.

The SJC is an independent body but not the president, Justice Bandial observed, adding that this was the conundrum crying out for resolution.

Justice Bandial also recalled that the Iftikhar Chaudhry case was patently based on mala fide since the then president (Pervez Musharraf) was the biggest beneficiary of the sacking of the then chief justice.

But in the present case, the court has to determine to what extent the precedents set by the Iftikhar Chaudhry case have been observed. Only then the matter can be referred to the SJC, Justice Bandial added.

Mr Razvi argued that the law division, after seeking concurrence from the Attorney General, forwarded the same to the president and the reference already showed that the president approved it “without applying his mind”.

He emphasised that all the fundamental rights as envisaged by the Constitution also applied to the sitting superior court judges and that access to justice could only be guaranteed if the tenure of judges was secure.

When Justice Faisal Arab wondered whether the president or the SJC can take cognisance of an issue if they find something in the electronic media or the print media, the counsel retorted that the president did not read newspapers. Instead, a “factory in the presidency is working to churn out ordinance after ordinance”.

“The allegation gets credence after the president himself admitted that he had no idea about the prevalent wheat flour crisis in the country,” the counsel said.

Published in Dawn, January 28th, 2020