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.
BEFORE THE SUPREME JUDICIAL COUNCIL PAKISTAN
Mr. Justice Asif Saeed Khan Khosa, CJP
Mr. Justice Gulzar Ahmed, Judge, SCP Member
Mr. Justice Sh. Azmat Saeed, Judge, SCP Member
Mr. Justice Ahmed Ali M. Shaikh, Chief Justice, HCS Member
Mr. Justice Waqar Ahmad Seth, Chief Justice, PHC Member
In re: Supreme Judicial Council No. 427 of 2019
(Information under Article 209 of the Constitution of the Islamic Republic of Pakistan, 1973 against Mr. Justice Qazi Faez Isa, Judge, Supreme Court of Pakistan)
In attendance: Mr. Waheed Shahzad Butt (Informant in person)
Date of hearing: 19.08.2019
Mr. Justice Asif Saeed Khan Khosa, CJP (Chairman):
The subject information was supplied to this Council by the informant namely Mr. Waheed Shahzad Butt, Advocate High Court, Lahore through a letter dated 12.06.2019 calling upon the Council to hold an inquiry under Article 209 of the Constitution against Mr. Justice Qazi Faez Isa, an Honourable Judge of the Supreme Court of Pakistan (hereinafter referred to as “the respondent-Judge”). According to the informant after filing of a Reference by the President of Pakistan against the respondent-Judge under Article 209 of the Constitution directing this Council to inquire into the conduct of the respondent-Judge for not disclosing in his Income-Tax returns and Wealth Statements acquisition of three properties in the United Kingdom, possibly through indulging in money-laundering, in the names of his spouse and children the respondent-Judge had, instead of explaining the sources of funds for such acquisition of properties, repeatedly written letters to the President demanding provision to him of a copy of the Reference so filed, alleging that the contents of the Reference had been leaked to the media so as to launch a smear campaign against him and also requiring the Prime Minister of Pakistan to disclose the assets of his different wives and children. It was alleged by the informant that the letters written by the respondent-Judge were leaked to the media generating an unnecessary public controversy, the language used in the letters was offensive, the Prime Minister of Pakistan was targeted and unduly dragged by the respondent-Judge into the controversy and unsubstantiated allegations were leveled against the President and other holders of offices in the Federal Cabinet and Government regarding leaking the contents of the Reference to the media. The informant had maintained that the above mentioned conduct of the respondent-Judge fell foul of different Articles of the Code of Conduct for Judges of the Supreme Court and High Courts prescribed by this Council.
2. After receipt of the information the Chairman of this Council had sought an opinion of one of the Members of the Council namely Honourable Mr. Justice Sh. Azmat Saeed in terms of the Supreme Judicial Council Procedure of Enquiry 2005 and after receipt of his lordship’s opinion in the matter the information received and the opinion rendered were put up before the Council on 12.07.2019 and after deliberating upon the matter the Council had decided to issue a show cause notice to the respondent-Judge. An interim reply of the respondent-Judge to the show cause notice so issued has been received and the same has been perused.
3. In his interim reply to the show cause notice the respondent-Judge has admitted writing of the relevant letters but has denied leaking the same to the media and has taken the following stands:
(i) The Secretary of this Council had shown unusual haste in processing the present information;
(ii) the opinion rendered by Honourable Mr. Justice Sh. Azmat Saeed was not in terms of the requirements of the Supreme Judicial Council Procedure of Enquiry 2005;
(iii) the show cause notice had not been issued by the Council and the same had been issued by the Secretary of the Council which was in violation of the Supreme Judicial Council Procedure of Enquiry 2005;
(iv) the Secretary of the Council entertains prejudice and bias against the respondent-Judge;
(v) sufficient material was not available before the Council to issue a show cause notice to the respondent-Judge;
(vi) the informant’s credentials and motivations are doubtful and mala fide;
(vii) In his meeting with the Chief Justice of Pakistan the respondent-Judge was not advised against writing a letter to the President;
(viii) the present information had been taken up by the Council out of turn which impinged upon bona fide of the exercise;
(ix) the proceedings of the Council had been taken and the respondent-Judge was required to file his reply to the show cause notice at a time when he was availing sanctioned leave during the Summer Vacation of the Supreme Court of Pakistan, many senior lawyers who could be consulted by the respondent-Judge were abroad and the respondent-Judge and his immediate family were under stress at the relevant time due to medical conditions of the father-in-law and the daughter of the respondent-Judge;
(x) unlike the proceedings in the President’s Reference filed against the respondent-Judge initial response of the respondent-Judge was not sought by the Council in connection with the present information; and
(xi) writing of a letter by a Judge of the Supreme Court to the President of the country does not ipso facto amount to misconduct on the part of the Judge.
4. We have gone through the information supplied by the informant along with the documents annexed therewith and have heard him in person and have also perused the show cause notice issued to the respondent-Judge and his interim reply to the same. After deliberating upon the matter from diverse angles we proceed to record our conclusions in the following paragraphs.
5. The respondent-Judge had written three letters to the President and they were dated 28.05.2019, 03.06.2019 and 12.06.2019. In all of those letters the respondent-Judge had maintained that he had come to know through the media that the President had filed a Reference against him before this Council. He had also expressly maintained in those letters that he was left only to speculate about the contents of the Reference and about the allegations leveled therein and, therefore, through his letters he had demanded that the President ought to supply a copy of the Reference to him so that he might know the exact nature of the allegations leveled therein. In his interim reply to the show cause notice the respondent-Judge has referred to a meeting with the Chief Justice of Pakistan in which meeting a request made by the respondent-Judge for supply of a copy of the Reference was statedly not acceded to by the Chief Justice. 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. 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:
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 and of the contents of the same. 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. 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. 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.
Some other details of the conversation taking place between the respondent-Judge and the Chief Justice on that occasion have not been shared by the Chief Justice with the Members of this Council because they are not directly relevant to the information under consideration. The above mentioned details of the meeting taking place between the Chief Justice and the respondent-Judge and of the conversation taking place in that meeting would not have been shared by the Chief Justice with the Members of this Council if the respondent-Judge had not referred to such meeting or conversation in his interim reply to the show cause notice, and that too selectively.
6. 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. It is not for us to speculate as to why despite having direct and firsthand information in the relevant regards the respondent-Judge had chosen to write the relevant letters. In the same vein dragging the Prime Minister and his different spouses and children into the matter through such letters was in bad taste, to say the least. An allegation of misconduct leveled against a Judge could not be offset through an oblique allegation leveled by the Judge against some other constitutional functionary.
7. 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 initial opinion rendered by Honourable Mr. 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. 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 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.
8. Despite the conclusions reached above we have pertinently noticed that in the information supplied by the informant he had not alleged that the contents of the letters written by the respondent-Judge to the President had been leaked to the media by the respondent-Judge himself. 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. 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. As regards the contents of the said letters 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. 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 stress might have aggravated his sense of harassment and might have contributed towards outrunning of his discretion. 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. This information/complaint is, therefore, filed.
Hon’ble Member-I Hon’ble Member-II
Hon’ble Member-III Hon’ble Member-IV
August 19, 2019