ISLAMABAD: The Supreme Judicial Council (SJC) has rejected a complaint of misconduct against Supreme Court judge Qazi Faez Isa over writing letters to the president of Pakistan after filing of presidential reference against him for non-disclosure of his family’s assets in his wealth statements.
“The record shows that at the relevant time the respondent-judge was also under some stress because of the medical condition of his father-in-law and daughter, which might have aggravated his sense of harassment and might have contributed towards outrunning of his discretion. In this view of the matter the alleged impropriety in the private letters written by the respondent-judge to the president has not been found by us to be serious or grave enough to constitute misconduct sufficient for his removal from the exalted office of a judge of the Supreme Court of Pakistan. This information/complaint is; therefore, filed,” stated a 10-page order written by SJC Chairman and Chief Justice of Pakistan Asif Saeed Khosa over the complaint of misconduct filed by Waheed Shahzad Butt advocate against Justice Isa for writing letters to the president of Pakistan. Other presidential reference against Justice Isa is still pending.
The council; however, noted that in the information supplied by the informant (Waheed Shahzad Butt), he had not alleged that the contents of the letters written by Justice Isa to the president had been leaked to the media by the respondent-judge himself. It is also said that the informant had not been able to produce anything before the council to establish that Justice Isa had revealed or disclosed anything about his relevant letters to anybody.
“In the absence of such an allegation having been levelled in the information and also in the complete absence of any material having been produced before the council in support of such a possibility the complexion of the information against the respondent-judge undergoes a metamorphosis reducing it merely to writing of private letters by him to the president,” it stated.
The order stated that the purpose or the contents of such letters might appear to some to be oblique or objectionable but such letters were merely private letters not shown to be meant or intended to be read by anybody other than the addressee and those to whom they had been copied.
As regards to the contents of the said letters, the order stated, “It could well be that after filing of the reference against him by the president, Justice Isa might have subjectively felt a sense of persecution at the hands of those whom he suspected and in that subjective sense of hounding he might have overstepped the sense of propriety vis-à-vis the contents of the letters written by him.”
SJC finding on CJP meeting with Justice Isa:
Regarding Justice Isa’s meeting with CJP Khosa, the order stated that it was unfortunate that Justice Isa had found it appropriate not only to refer to a private meeting with the chief justice but also to a private conversation taking place in that meeting without even seeking permission of the other participant of such a meeting and conversation.
“It is also quite unfortunate that the respondent-judge has been selective in his references to the meeting and the conversation taking place therein. The chief justice has the highest personal and professional regard for the respondent-judge but for the sake of the record only, and for completing the picture left by the respondent-judge unfinished.”
The order stated that CJP Khosa had shared with the SJC members the details of the relevant meeting and the conversation taking place between them.
CJP Khosa told that soon after receiving the presidential reference, he thought it fit to straightaway informally apprise Justice Isa about filing of the reference and its contents. The judge was then contacted by the chief justice on intercom with a request to come over to the chief justice’s chamber which the respondent-judge was kind enough to do. The chief justice then informed the respondent-judge about receipt of the reference from the president and asked him to read the same for his information. The respondent-judge then sat down and read the entire reference and took his time in doing so.
During such reading, he asked for a paper and pencil for taking notes which were supplied to him by the chief justice personally. After reading the reference and taking notes, the respondent-judge said that he wanted to write to the president asking for a copy of the reference to which the chief justice responded by saying that under the Constitution the president could require the council to inquire into the conduct of a judge but he was not obliged to provide a copy of the reference to the concerned Judge.
The respondent-judge then requested the chief justice to provide him a copy of the reference but the CJP told him that it was not for the chief justice but for the council to provide a copy of the reference to the concerned-judge if and when the council felt persuaded to proceed against him.
At this the respondent-judge expressed his determination to write to the president on the subject and asked the chief justice whether such a letter should be routed through the chief justice or the SC or should it be written directly to the president to which the chief justice said that he had never written such letters and; therefore, he was not in any position to advise the respondent-judge in that regard.
The chief justice added that writing of such a letter might unnecessarily complicate things. Some other details of the conversation taking place between the respondent-judge and the CJP on that occasion had not been shared by the chief justice with the members of this council because they were not directly relevant to the information under consideration.
“The details of the meeting taking place between the chief justice and the respondent-judge and of the conversation taking place in that meeting would not have been shared by the chief justice with the members of this council if the respondent-judge had not referred to such meeting or conversation in his interim reply to the show-cause notice, and that too selectively,” stated the order.
The council also noted that the meeting showed that Justice Isa not only knew about filing of the reference against him by the president but also about the actual contents thereof and the allegations levelled therein before he had started writing successive letters to the president on the subject professing his ignorance about the same.
The council wondered that why despite having direct and firsthand information in the relevant regards Justice Isa had chosen to write the relevant letters.
“In the same vein dragging the prime minister and his different spouses and children into the matter through such letters was in bad taste, to say the least. An allegation of misconduct levelled against a judge could not be offset through an oblique allegation levelled by the judge against some other constitutional functionary,” stated the order.
A senior lawyer Saiful Malook questioned that could the SJC after observing that the respondent-judge lied (Para 6) as much as he had read reference in chief justice office and took notes; thereafter, wrote to president for a copy, saying to know the allegations in reference to reply although he knew already.
However, another senior lawyer believed that the SJC might have avoided to discuss this portion in the order.
He questioned why the SJC had not summoned Justice Isa to give his opinion about the meeting. Even Attorney General for Pakistan was not given a notice.
SJC rejects Justice Isa’s questions raised over conduct of its secretary
The order stated that no unusual haste was shown by the SJC secretary in processing the present information because at least from the month of January of this year all information/complaints received under Article 209 of the Constitution and all other matters requiring attention of the CJP in all his capacities were processed by the registrar and his staff immediately without loss of any time and the record could vouch for that.
“The initial opinion rendered by Justice Sheikh Azmat Saeed requiring the council as a whole to attend to the allegations levelled against the respondent-judge showed that his lordship had found the allegations to be serious enough to be taken up by the council and; thus, in substance and spirit the requirements of the relevant paragraph of the SJC Procedure of Enquiry 2005 stood complied with.”
The order stated that it was the council itself which had required a show-cause notice to be issued against Justice Isa and the show-cause notice then issued by the secretary of the council not only referred to that order of the council but it also expressly stated that the same was being issued with the approval of the council.
“In this view of the matter nothing turned on the show-cause notice having been issued by the secretary and not by the council. The allegation that the secretary of the council entertains prejudice and bias against the respondent-judge is a bald allegation which has not been substantiated through any material whatsoever.”
Apart from that it was the council and not its secretary which was to form its opinion vis-à-vis correctness or otherwise of the allegations levelled against the respondent-judge.
“The question as to whether there was sufficient material available before the council for issuing a show-cause notice to the respondent-judge or not was a question to be determined by the council and not by the respondent-judge.”
Justice Isa’s letters were ‘factually incorrect’: SJC
The order stated that the circumstances of the matter clearly demonstrated that the stated premise on which the relevant letters were written to the president was factually incorrect, dragging of the prime minister, his different spouses and children into the matter was distasteful and the basis of levelling allegations against a number of persons regarding leaking information about the reference was nothing but presumptive.
In these circumstances, the council had found that sufficient basis was available for issuing a show-cause notice to the respondent-judge and to seek his reply to the relevant questions and issues.
As regards to the informant’s credentials or motivations opined by the respondent-judge to be doubtful and mala fide, the council observed that in a matter like this it was the correctness and seriousness of the allegations of misconduct of a judge upon which this council was ordinarily focused and not on the credentials or antecedents of the informant.
Apart from that the respondent-judge had not been able to refer to anything concrete or substantial to bring in doubt the credentials or motivations of the informant in the present matter.
As regards to the meeting between the respondent-judge and the CJP, enough had already been said in the preceding paragraphs.
The assertion of the respondent-judge that the present information against him had been taken up by the council out of turn was merely speculative. As already mentioned above, all the information/complaints filed under Article 209 of the Constitution were taken up for consideration by the council immediately and at one given time many information/complaints so received were passing through different stages of the process contemplated by the SJC Procedure of Enquiry 2005.
During the pendency of the present information many other information/complaints which were already in process had since been disposed of and during the interregnum many others had been received which were in process.
Presently only about half a dozen other information/complaints were pending before the council and while being actively attended to they were passing through different stages of the requisite process.
“The respondent-judge being on sanctioned leave during the summer vacation of the Supreme Court of Pakistan when he was called upon to submit his reply to the show-cause notice, many senior lawyers who could be consulted by the respondent-judge having proceeded abroad during the relevant period and medical condition of the father-in-law and the daughter of the respondent-judge at the relevant time are factors which had no bearing upon the period of 14 days fixed under the SJC Procedure of Enquiry 2005 for filing a reply to the show-cause notice and the council could not disregard the said part of the procedure.”
The order stated that it was for the council to decide whether a response of the respondent-judge ought to be sought in the present matter or not before issuing a show-cause notice to him and the respondent-judge could not insist that the procedure adopted in one matter should also be adopted in all other matters.
Compliant against Justice Isa
The complainant had alleged that instead of explaining the sources of funds for such acquisition of properties, the respondent-judge repeatedly wrote letters to the president demanding provision of a copy of the reference, alleging that the contents of the reference had been leaked to the media so as to launch a smear campaign against him and also requiring the prime minister to disclose the assets of his different wives and children.
It was alleged by the informant that the letters written by the respondent-judge were leaked to the media generating an unnecessary public controversy, the language used in the letters was offensive, the PM was targeted and unduly dragged by the respondent-judge into the controversy and unsubstantiated allegations were levelled against the president and other holders of offices in the federal cabinet and government regarding leaking the contents of the reference to the media.
The informant had maintained that the conduct of the respondent-judge fell foul of different articles of the Code of Conduct for judges of the Supreme Court and high courts prescribed by this council.