Challenging the detailed judgment in Justice Qazi Faez Isa case, the Supreme Court Bar Association (SCBA) has contended before the apex court that the majority verdict rewrites the judges Code of Conduct by declaring that the failure of a judge to make himself aware or to make reasonable effort to aware or informed about the financial interests of his family members constitutes misconduct.
The SCBA through its counsel Hamid Khan has filed 14 additional grounds for the review of the apex court majority judgment in Justice Isa case. The review petition stated that under Article 209 (8) of the Constitution, it is for the Supreme Judicial Council (SJC) or council and not the Supreme Court to issue a code of conduct to be observed by judges of the superior courts.
The judgment rewrites the Code of Conduct and that too retrospectively by mandating that the failure of a judge not to make himself aware or informed about the financial interests of his family members constitutes misconduct.
It is stated that the Code of Conduct issued by the Supreme Judicial Council was amended on August 8, 2009 did not ignore the Bangalore principles. The review petition stated that importing the Bangalore principles in the Code of Conduct is contrary to the law declared by the apex court in several cases.
It is further stated that even the Code of Conduct does not require judges to declare their own assets through public or confidential statements or declaration. The provision of election laws or for that matter the Foreign Assets Declaration and Repatriation Act 2018 had absolutely no co-relation with the Code of Conduct.
It is further stated that if it is indeed in public interest that judges must explain and to be aware of the financial interests of all family members then such objective could only be met by the SJC making appropriate amendments to the Code of Conduct. Likewise, such amendment shall be applied to all judges and not the petitioner judge alone.
The review petition further stated that the petitioner judge could not be made liable to any alleged shortcoming discovered by the Federal Board of Revenue (FBR) against his spouse and when the petitioner judge is not party to such proceedings.
The SCBA has also questioned the majority judgment for not upholding the petitioner’s contention on malice in facts. It says that the majority judgment falls into patent error by being swayed by the withdrawal of the PTI review petition in the Faizabad dharna case judgment.
It is also stated that in referring the matter for consideration of the SJC without hearing Justice Isa on the jurisdiction and bona fide of the council, the majority judgment has made error in floating on the surface of the record. The counsel for the petitioner had reserved his right to argue on the SJC.
The SCBA has also adopted the reasoning and the conclusion drawn by Justice Maqbool Baqar and Justice Syed Mansoor Ali Shah in their dissenting notes.
A six judge larger bench headed by Justice Umar Ata Bandial will take up review petitions on Monday. On the other hand, superior bars and Justice Isa’s wife, Sarina Isa, have requested the apex court to include three judges in the larger bench.