Justice Isa again questions impartiality of SJC

Apex court full bench to resume today hearing of pleas against presidential reference

ISLAMABAD: A full bench of the Supreme Court of Pakistan will resume today (Monday) hearing of a set of petitions filed against a presidential reference that seeks apex court judge Qazi Faez Isa’s removal for not declaring his family members assets.

The petitions filed by a number of groups and individuals including Justice Isa declare the presidential reference filed in May this year against the judge’s alleged misconduct as based on ill intention.

Meanwhile, Justice Isa has also submitted a rejoinder to the reply submitted in the apex court by the Supreme Judicial Council (SJC) – which is hearing the presidential reference – and once again called into question the council’s impartiality.

The judge expressed serious concern over the engagement of the Attorney General of Pakistan (AGP) by the council to submit its reply in the apex court last week.

"The engagement of the attorney-general on behalf of the council has amplified the assertions of partiality and malice against the petitioner (Justice Isa)," said the 17-page rejoinder.

Justice Isa said his apprehensions and pleadings stand proven warranting dismissal of the pending proceedings against him before the council. The SC judge said the council is a high judicial forum comprising senior most judges who are bound by a code of conduct.

"With utmost respect, the council ought to have refrained from entering into any dealing with the Attorney-General who is counsel for the complainant (government) against the petitioner, an independent respondent in the instant petition and someone vociferously seeking removal of the petitioner from the judicature."

The SC judge said the role of the AGP under the law as well as his conduct during the proceedings before the council shows that he is not an independent prosecutor or an officer of the council capable of impartially and independently rendering assistance to the council. "He is in law and in fact the counsel for a party (ie, the executive) in the proceedings pending before the council."

Justice Isa said the AGP is launching unnecessary personal attacks against him in pleadings filed before the council and before this court has confirmed his partiality and ulterior motives.

"The petitioner has specifically pleaded mala fide with material particulars against all concerned including the Attorney-General. In view of such facts, the dealing between the Attorney-General and the council raises serious apprehensions regarding the independence and fairness of the pending proceedings against the petitioner and the conduct of the council."

The SC judge said engagement of the chief legal adviser of the executive by the SJC as its legal representative has undermined the principle of separation of powers that is a salient feature of the constitutional order.

"Such action further confirms the apprehensions of the petitioner detailed in CP No 17/2019 and raises serious questions regarding the fairness of proceedings pending before the council." Justice Isa also objected to attaching an affidavit by the AGP along with the SJC reply.

It said the AGP is a law officer of the executive swearing an affidavit denying allegations against the council endorses his case that the government is meddling in purely judicial domain and trying to influence the adjudicatory function vested in the council

The SC judge submitted that the council is not vested with the legal authority to assign duties or responsibilities to the AGP. The appointment of the AGP as counsel to the SJC to represent it before this apex court is in breach of Article 100 of the Constitution and in conflict with the constitutional mandate of the AGP to act as chief legal adviser to the federal government.

Justice Isa said no explanation whatsoever of the factual assertions made in his petition has been provided. "Instead all allegations of illegality, irregularity and malice pleaded with particulars have been refuted through a bald denial. It is settled law that if allegations made in a petition are not denied specifically the same stand admitted."

He said a necessary corollary to the foregoing position of law is that assignment of any work and role to the AGP by any entity or forum other than the federal government is impermissible under the Constitution and the law.

“Therefore, the duty to ‘conduct a reference’ under clause 10 of the SJC Procedure of Enquiry 2005 is ultra vires of the Constitution. In cases where the president sends a reference to the council the AGP functions as the legal adviser to the executive and with all due deference to the council, the latter cannot mandate the AGP to conduct the reference or act as an officer of the council," he said.