Writing letters to president: SJC dismisses reference against Justice Isa

ISLAMABAD: The Supreme Judicial Council (SJC), a constitution forum for the accountability of judges of the superior courts for misconduct, on Monday found nothing serious in the letters written by Justice Qazi Faez Isa to the President of Pakistan to constitute misconduct for his removal from the office of a Judge of the Supreme Court.

A five-member bench of the Supreme Judicial Council (SJC) comprising Chief Justice of Pakistan Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Sheikh Azmat Saeed, Sindh High Court (SHC) Chief Justice Ahmed Ali M Shaikh and Peshawar High Court (PHC) Chief Justice Waqar Ahmed Seth dismissed a complaint filed by Waheed Shahzad Butt, submitting that Justice Qazi Faez Isa had violated the code of conduct for members of the judiciary by writing letters to the president of Pakistan and sharing it with the media.

He had submitted that prima facie, it appears that Code of Conduct to be observed by the Judges of Supreme Court requires His Lordship Mr. Justice, Qazi Faez Isa to demonstrate highest qualities of intellect and character but while writing letters to the President of Pakistan and sharing it with the media, Justice, Qazi Faez Isa appears to have committed gross misconduct and is liable to be removed upon the recommendation of the Supreme Judicial Council in terms of Article 209 of the Constitution of Pakistan.

Chief Justice of Pakistan Justice Asif Saeed Khan Khosa who is also the Chairman of Supreme Judicial Council (SJC) dismissed the complaint.

“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”, Chief Justice of Pakistan/Chairman Supreme Judicial Council (SJC) announced in the order.

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 the daughter which might have aggravated his sense of harassment and might have contributed towards outrunning of his discretion”, the order further reads

On July 18, the Supreme Judicial Council (SJC) had issued a show cause notice to Justice Qazi Faez Isa for writing letters after a presidential reference was filed against him. The Council had asked Justice Isa to explain his conduct for writing letters to the president of Pakistan.

On Monday, complainant, Waheed Shahzad Butt appeared before the Council in-person

“We have also questioned the informant appearing before us in person today in that regard and he has not been able to produce anything before us to establish that the respondent-Judge had revealed or disclosed anything about his relevant letters to anybody”, says the order

The Council observed that in the absence of such an allegation having been leveled 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.

“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”, says the order.

As regards the contents of the said letters, the Council held that it could well be that after filing of the Reference against him by the President the respondent-Judge 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.

“It is unfortunate that the respondent-Judge has 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 meeting and conversation”, says the order adding that 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 Chief Justice has shared with the Members of the Council the following details of the relevant meeting and the conversation taking place therein with the respondent-Judge, says the order.

The order further noted that soon after receiving the Reference filed by the President against the respondent-Judge the Registrar of the Supreme Court (who is also the Secretary of this Council) brought the said Reference to the Chief Justice’s Chamber for the latter’s information and perusal because the Chief Justice is also the Chairman of this Council.

After perusal of the Reference and brooding over the matter the Chief Justice thought it fit to straightaway informally apprise the respondent-Judge of filing of the Reference, says the order adding that the respondent-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. The order further noted that 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, says the order.

It further held that the respondent-Judge then requested the Chief Justice to provide him a copy of the Reference but the Chief Justice told him that it was not for the Chief Justice but for the Council to provide a copy of a 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 Registrar of the Supreme Court or it should 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.

The Council observed that the three letters written by the respondent-Judge to the President clearly stated that till the writing of those letters the respondent-Judge did not know whether any Reference had actually been filed by the President against him or not and in any case he was unaware of the contents of and the allegations leveled in any such Reference if filed.

“The above mentioned meeting of the respondent-Judge with the Chief Justice of Pakistan shows that the respondent-Judge not only knew about filing of the Reference against him by the President but also about the actual contents thereof and the allegations leveled therein before he had started writing successive letters to the President on the subject professing his ignorance about the same, says the order adding that the above mentioned different stands taken by the respondent-Judge in his interim reply to the show cause notice have not been found by us to be carrying much weight.

There was no unusual haste shown by the Secretary of this Council in processing the present information because at least from the month of January of this year all informations/complaints received under Article 209 of the Constitution and all other matters requiring attention of the Chief Justice of Pakistan in all his capacities are processed by the Registrar and his staff immediately without loss of any time and the record can vouch for that, the order reads.

It observed that the initial opinion rendered by Justice Sh. Azmat Saeed requiring the Council as a whole to attend to the allegations leveled 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 Supreme Judicial Council Procedure of Enquiry 2005 stood complied with.

It was the Council itself which had required a show cause notice to be issued against the respondent-Judge 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, says the order

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 is the Council and not its Secretary which is to form its opinion vis-à-vis correctness or otherwise of the allegations leveled 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. The circumstances of the matter mentioned above clearly demonstrate 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 leveling allegations against a number of persons regarding leaking information about the Reference was nothing but presumptive.

In these circumstances this 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 the informant’s credentials or motivations opined by the respondent-Judge to be doubtful and mala fide, suffice it to observe that in a matter like this it is the correctness and seriousness of the allegations of misconduct of a Judge upon which this Council is ordinarily focused and not on the credentials or antecedents of the informant. Apart from that the respondent-Judge has not been able to refer to anything concrete or substantial fact to bring in doubt the credentials or motivations of the informant in the present matter. As regards the meeting between the respondent-Judge and the Chief Justice of Pakistan enough has 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 is merely speculative. As already mentioned above, all the informations/complaints filed under Article 209 of the Constitution are taken up for consideration by the Council immediately and at one given time many informations/complaints so received are passing through different stages of the process contemplated by the Supreme Judicial Council Procedure of Enquiry 2005. During the pendency of the present information many other informations/complaints which were already in process have since been disposed of and during the interregnum many others have been received which are in process.

Presently only about half a dozen other informations/complaints are pending before the Council and while being actively attended to they are 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 fourteen days fixed under the Supreme Judicial Council 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.

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 cannot insist that the procedure adopted in one matter must also be adopted in all other matters. Different allegations are leveled before the Council in different matters and the Supreme Judicial Council Procedure of Enquiry 2005 empowers the Council to adopt any procedure suiting the requirements of any particular matter brought before it.

And finally, writing of a letter by a Judge of the Supreme Court or a High Court to the President of the country may not ipso facto amount to misconduct on the part of the Judge but if, inter alia, the premise on which the letter is written is demonstrably against the facts, the letter has a tendency to generate a public controversy involving the Judge or the President or the letter is written and allegedly leaked to the media in order to create support or sympathy in the public at large so as to influence a matter pending before a constitutional body like this Council then an inquiry into the conduct of such a Judge may be in order, the Council held.