ISLAMABAD: Another constitutional petition was filed with the Supreme Court on Saturday challenging the Supreme Judicial Council's (SJC) misconduct proceedings against Justice Qazi Faez Isa.
The petitioners, senior lawyer Abid Hassan Minto and veteran journalist IA Rahman, maintained that the SJC secretary taking up the presidential references out of turn was an arbitrary and mala fides exercise of power and in violation of Articles 25 and 10A of the Constitution.
Consequently, they added, the proceedings initiated by the SJC secretary in the presidential references, as well as the private reference filed against Justice Isa, and the show-cause notices were liable to be set aside as void ab initio.
“Neither the Constitution nor the procedure state any preference or priority for a matter referred by the president as opposed to information received from other sources,” the petition read.
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“However, even if it is accepted, without conceding, that some priority is attached to a matter received from the president, the SJC registrar by taking up a private reference and proceeding with it in great haste has acted in mala fides.”
The petitioners argued no information was available in the public domain regarding the number of references, if any, pending against the present members of the SJC.
“A member against whom a reference is pending cannot be part of the SJC,” the petition read.
The petitioners argued that the procedure was currently extremely vague in that it referred to the code of conduct as the basis on which a judge may be removed while even the code did not call itself a comprehensive document and stated that it was only an “…attempt…to indicate certain traditional requirements of behaviour”.
“Until a comprehensive code of conduct is framed, no judge can be removed at all unless the conduct complained of is egregious and a clear violation of a well-articulated code, that conformed to established, undisputed legal standards,” the petition added.
The petitioners also stated that the SJC carefully guarded its secrecy as to the contents of the matters before it. Yet, SJC registrar took no steps in the matter of leaking of information regarding the presidential References to the public and did not seem to have sought any reports or clarifications in this regard from any quarters. This inaction on his part speaks further to his bias and mala fides.
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They argued that the second reference against Justice Isa was based on his letters to the president.
“It is submitted that by no stretch of imagination is there anything improper about a judge writing to his appointing authority and the Head of the State, seeking clarification and information regarding an action that has been taken by the latter,” the petition read.
The retirement or resignation of a judge while a reference in respect to them is pending before the SJC could not render the reference infructuous.
“Such a practice violates, inter alia, Article 25 and militates against the spirit of Article 209. It is respectfully submitted that the SJC does not appear to have discretion in this regard and is bound to decide all matters pending with it. “
They further argued that Article 175A was introduced to provide transparency to the process of appointment of superior court judges. The same transparency must exist in respect to removal of judges under Article 209 and this transparency is compromised when the proceedings are shrouded in secrecy.