LAHORE: Constitutional expert and senior lawyer of the Supreme Court of Pakistan Abid Hassan Minto has written a letter to the Supreme Judicial Council (SJC) requesting the SJC to respond on a query that what are the reasons for taking up references against Justice Faez Isa and Justice KK Agha in preference to the other pending matters before the council.
Abid Hassan Minto’s letter to SJC copy of which is available with The News has put five questions before the SJC.
Minto in his letter to SJC said that he has practiced before the courts of this country for over sixty years. During this time, I have witnessed several ups and downs in the society in general and the judicial system in particular. These range from dictators completely gagging and controlling the judiciary at one extreme to wild activism by the judiciary based on notions of self righteousness and self aggrandizement at the other. While I have always hoped that things will ultimately improve, recent events show that the situation is rather dismal, Minto added.
Minto said: “As a citizen, and a Senior Advocate of the Supreme Court of Pakistan, I am deeply invested in the judicial system of this country as I am sure is the rest of the population. I therefore feel saddened by the goings on in recent days that have come to be publicly known in the matter of references filed against a Supreme Court judge and being heard by the Supreme Judicial Council. The judge in point is not known to me personally but I am aware that he is the author of some judgments that have irked many who lurk in or behind the corridors of power. What is especially troublesome for me is that this august body, the Supreme Judicial Council, should come to be perceived as being an accessory to the designs of such people.
For myself, I wish to believe that the courts and judges are what they should be. Impartial and aboveboard and I am certain that this is true for the honourable members of this council. “In order to be reassured of this, however, I am making certain requests in this letter which I hope you will accede to as a matter of courtesy and also as a matter of my Fundamental Right of access to information, Minto added.”
Abid Hassan further said that a press release issued by the SJC was reported in the Express Tribune of 15 June. According to this, the number of references pending before the SJC is 28 while 398 references have been disposed of (sic). The news item gives no other information about any of these references---whether pending or disposed of--- except that "all the (pending) cases are in process and shall be disposed of in due course of time". It appears that the council claims (apparently by virtue of Rule 13 (1) & (3) of the SJC Procedure of Inquiry 2005) confidentiality for these matters. Although, the Procedure of Inquiry appears to be ultra vires, even if it is not, one would think that confidentiality may be claimed, it should be allowed to be claimed only by the judge under inquiry, and that too in certain circumstances.
But I do not ask for a breach of any confidentiality. I do, however, note that note that even the rules of the council do not accord any confidentiality to the "findings" through which a reference is disposed of. I am therefore, requesting that the council may provide to me the 398 findings/orders through which the 398 references have been "disposed of". I shall, of course be happy to bear all applicable fees and expenses, as advised by you, Minto added.
Minto said “If for some reason the council thinks that it must refuse me access to even the "findings", then I request that, at the very least, it kindly provide a response to the following specific question”.
Of the disposed of cases, how many were actually decided and in how many were the judges allowed to retire along with benefits of retirement? Minto questioned.
Minto said “I would, however, like to point out that it would be odd to refuse access to the said findings/decisions considering that the finding/decision in Justice Shaukat Siddiqui's case is uploaded on the website of the Supreme Court”.
Additionally, I am submitting the following questions for your kind response. These questions do not have anything to do with the proceedings of a matter before the council and hence are not covered by Rule 13. Again, all applicable fees and expenses, as advised, will be happily borne by me.
Questions:
Q 1: Since the Constitution does not make any distinction regarding the treatment of information received from the President or through any other source, what are the reasons for taking up the references against Justice Faez Isa and Justice K K Agha in preference to the other pending matters before the council?
Q 2: Have any proceedings at all been taken to date in the other pending references?
Q 3: Are there any references pending before the SJC that relate to any of the honourable judges that presently sit in the SJC, and if so, is it proper for those honourable judges to sit in the council until the references regarding them are first decided?
Q 4: If there are no reasons to take up the matters pertaining to Justices Isa and Agha out of turn, then does not doing so indicate bias, disentitling the presently constituted council to continue its proceedings against the said judges?
Q 5: Would the bias indicated in the preceding question (4) itself not constitute misconduct and if so, should this matter not first be decided by a reconstituted council in respect of each of its present members?
Minto concluded his letter, saying that he is quite certain that SJC will be able to provide him with more than satisfactory responses which will address his concerns and put his anxiety to rest and he will happily be able to repose his faith in the council particularly and the superior judiciary generally. I trust that SJC will kindly forward this letter for the kind consideration of the council members and provide me with a response at the earliest.
