Seventeen days after a full court quashed a presidential reference seeking Justice Qazi Faez Isa's removal, the government – in a rare move – has submitted its written arguments, claiming that it doesn't perceive the judge as an obstacle and that “no sky will fall” due to Isa's verdict in Faizabad sit-in case.
The presidential reference filed in May last year accused that Justice Isa had committed misconduct as he had failed to mention his family member's foreign assets in his wealth statement.
Justice Isa was among a number of petitioners who had challenged the reference in the apex court, claiming that one of the reasons why the PTI led federal government filed a reference against him was the judgment he authored in November 2017 Faizabad sit-in case.
In the Faizabad sit-in judgment that was unveiled in February 2019, Justice Isa had mentioned intelligence agencies alleged role in using political forces against elected governments and also referred to the ruling PTI's 2014 marathon sit-in against the PML-N government.
In the 154-page written argument, submitted to the SC by the government's counsel Dr Farogh Naseem, the government rejected Justice Isa contention that since he had authored the Faizabad case judgment, the ruling party had filed the reference to seek his ouster.
"Again, apart from being absolutely incorrect, the allegations are nothing but presumptive in nature. In this count no mala fides can be inferred," it said
It noted that the Faizabad sit-in judgment reported as suo motu case No 7 of 2017 PLD 2019 SC 318, was decided by two judges – Mushir Alam and Qazi Faez Isa, Justice Alam being the senior of the two.
“It is correct that it is the petitioner who is the author judge, but that really makes no difference because the said judgment was co-signed by the Mushir Alam.
“Therefore, the Faizabad dharna [sit-in] judgment has to be construed to be firstly a judgment of the Supreme Court, and secondly a judgment co-authored by Mushir Alam J.”
However, it said, the government did not start any proceedings of any nature under Article 209(5) against Justice Alam.
“Therefore, the real purpose of bringing the reference… in respect of the petitioner [Isa] could not be to penalize him or take revenge from him in relation to the said dharna judgment but rather to supply information to the SJC [Supreme Judicial Council] in relation to the unaccounted/unexplained properties of the petitioner's wife and children," said the statement.
It contended that Justice Isa has not alleged any mala fides against the president – who moved the reference – hence, the reference or show cause notice could not be annulled on grounds of mala fides.
The written submission also rejects the petitioner judge's argument that Abdul Waheed Dogar, one whose complaint the presidential reference was filed as a proxy of “someone else”
“It is a settled proposition of law that the merit and sanctity of the information is relevant and the good or bad faith of the complainant/informant is not relevant.”
It said the information initially received from Dogar also mentioned names of two other Judges who allegedly have foreign properties – Justice Farrukh Irfan and Justice KK Agha. It said no action was taken in relation to Justice Irfan as he tendered his resignation, while action was taken against Justice Agha.
"It is important to point out that both the judges – Farrukh Irfan J and KK Agha J – had nothing to do with the Faizabad dharna case. This clearly goes to show that the Dharna judgment was not the reason why any presidential reference was brought against the petitioner."
With regard to the filing of a review petition by the PTI against Faizabad dharna case judgment, it said filing a review petition is the constitutional and statutory right of any aggrieved person. Therefore, no exception can be taken in this regard.
“With regard to the language employed in the said review petition, suffice would it be to say that nowhere in the said review petition it had been contended that the petitioner [Justice Isa] should not hear the review petition.
“No application has been moved by the PTI in the said review petition seeking the constitution of a larger bench. In fact no sky will fall in view of the Faizabad dharna judgment. The PTI continues to operate as a party," it added.
It said the petitioner's claim that the review petition filed by the PTI and the MQM-P were commonly worded, is again completely irrelevant as lawyers lift paragraphs from the petitions on the same subject drafted by other lawyers. Nothing is wrong about this practice.
It said the contention of the petitioner that he, having taken oath to uphold the Constitution, decides matters without fear or favour, is irrelevant and in bad taste.
“To the best of my understanding, all learned judges of the Superior Court take decisions without fear or favour, in consonance with provisions of the Constitution and law.
“But presidential references were initiated only against two learned judges, who were associated with holding of foreign properties, ie, KK Agha J and the petitioner.”
It said this again confirmed that the reference against the petitioner is not because of his role as an adjudicator, that he decides matters without fear or favour. The petitioner is never perceived to be an obstacle by the executive as wrongly contended by him.
The government's counsel Dr Farogh Naseem also rejected the claim that the government spied on the judge to find out his family members' assets in the United Kingdom.
He said any immoveable property in the UK is in the public domain, being part of public record. A term in the UK Land Registry website, underscored above, categorically restricts the owners of immoveable properties from opting out of the property information being published.
He said covert surveillance, under the law, would mean a systematic check on the person rather than on his property or vehicle.
“What is protected under the right to privacy is any personal information such as medical record, or matters related to marriage, procreation, contraception, family relationships, child rearing, education or personal information of an individual pertaining to the ‘biographical core'.
“There is no reasonable expectation to privacy in respect of personal finances or real estate holdings/records which are held to be ‘far afield' from being protected as they constitute public record and are in the public domain.”
He said on top of this, the petitioner and his family have admitted the ownership and details with regard to the three London properties. Hence, there could be no fact in issue with regard thereto.
The submission said the expected conduct of the judges of the superior courts is to be better and higher than anyone else; the logical conclusion is that judicial conduct is expected to be higher than those holders of public office who are subject to election and National Accountability Bureau (NAB) laws.
“It is thus expected that judges of the superior courts would not only conform to any standard of conduct of other holders of public office, but their conduct would be even more transparent and would stand at a much higher and better pedestal than other.”
He said where the status of the judges of the superior courts is distinctly higher than any other holder of public office or public servant, than surely the standard of behaviour expected of a judge will mandate him to account for unexplained assets of his spouse and dependent children.
Expressing surprise over the written reply, a member of Justice Isa's legal team said: "I have often heard of written arguments being filed after a decision has been reserved but never after a decision has been announced. And that too with a note at the end saying further arguments will also follow."