Veteran legal expert and AWP founding president Abid Hassan Minto and ex-chairperson of HRCP I.A. Rehman have jointly filed the petition challenging SJC’s out-of-turn hearing of references against Justice Qazi Faez Isa and Justic K.K. Agha
A veteran legal expert and a human rights defender have approached the Supreme Court of Pakistan challenging the hearing of a reference against two judges, reports daily Dawn.
Abid Hassan Minto, the founding president of the Awami Workers Party (AWP), and I.A. Rehman, the former chairman of the Human Rights Commission of Pakistan (HRCP), have jointly filed the petition against arbitrary and mala fide exercise of power by the Supreme Judicial Council (SJC) secretary in taking up the presidential references out of turn.
“Neither the Constitution nor the procedure regarding SJC hearing states any preference or priority for a matter referred by the president as opposed to information received from other sources,” argued the petition filed on Saturday just a day after the Supreme Court Bar Association (SCBA) challenged the references against Justice Qazi Faez Isa and Justice K.K. Agha, the report added.
This is the third such petition before the SC under Article 184(3) of the Constitution as the previous two petitions had been filed by Justice Isa himself and the SCBA, the newspaper report says.
Earlier on July 16, Mr Minto had written a letter to the SJC secretary posing five questions and also asking why the references against Justice Isa and Justice K.K. Agha of the Sindh High Court were taken out of turn.
The fresh petition contended that even if it was accepted that some priority was attached to a matter received from the president, the SJC secretary still acted in mala fide by taking up of the private reference and proceeding with it in great haste.
The petition regretted that no information was available in the public domain regarding total number of references, if any, pending against the present members of the SJC. Therefore, the petitioners argued, the SJC was not properly constituted for the out-of-turn hearing of references against Justice Isa and Justice Agha.
The SJC procedure of enquiry is also ineffective and vague since it refers to the Code of Conduct as the basis for removal of a judge despite the fact that even the code of conduct does not call itself a comprehensive document, according to the petition.
Thus, until a comprehensive code of conduct is framed, the petition contended, no judge should be removed unless the violation by the respondent judge was egregious and a clear violation of a well-articulated code that conformed to established undisputed legal standards.
The petition also regretted that no information was available to the public regarding 26 pending references before the SJC and the 398 cases that it disposed of. It informed the court that the SJC secretary ignored petitioner’s request for provision of very basic information regarding the matters disposed of by the council.
Referring to a private reference against Justice Isa for writing letters to the president, the petition contended that by no stretch of imagination, it was improper of a judge writing to his appointing authority and the head of the state, seeking clarification and information about an action that had been taken by the latter.
Besides, seeking information by writing letters to the president is protected by the judge’s right to due process guaranteed by Article 10A of the Constitution, the petition contended.
Similarly, no rules or a code of conduct can curtail person’s right, including that of a judge, of free speech under Article 19 of the Constitution, the petition argued, explaining that writing letters to the president by Justice Isa was his legitimate right that cannot be curtailed by an abstract and vague document, which calls itself as only an attempt at a code of conduct.
Mr Minto and Mr Rehman have urged the court to declare the references before the SJC void in view of the alleged conduct of the SJC secretary ‘tainted with bias and mala fide’.
The petitioners also asked the court to declare that the SJC could not consist of members against whom references were pending.
They have urged the court to also hold that the procedure of inquiry by the SJC was arbitrary, ultra vires and bad in law by not providing any criterion for the order of taking up matters.
The petition wants the SC to declare that the SJC cannot function without a proper procedure in place.
The apex court should also direct the SJC not to take up the references out of turn unless cogent reasons were supplied to reasonable criteria, the petition said.
Therefore, it added, the SC should direct that matters against the two superior court judges be taken up on their turn after disposing of the matters already pending and in accordance with properly framed rules or procedure that comply with the law and the constitution and the general norms of justice.
The apex court should also order the SJC to dispose of every reference filed before it and that unless a reference is dismissed, a judge is not entitled to receive post-retirement benefits irrespective of whether he or she retires or resigns during the pendency of references before the SJC.