Here’s Why SC Should Quash Reference Against Justice Isa
Judicial independence means that the judiciary will be free of any interference from the executive. This important status enjoyed by the judiciary enables it to make its decisions purely on facts, evidence, law and the constitution. An independent judiciary keeps in check the excesses committed by the executive, and protects people’s fundamental rights, as enshrined in the constitution, from being trampled upon. It holds aloft the banner of rule of law and the supremacy of the constitution.
However, the independence of the judiciary cannot properly be achieved without first ensuring that judges are free from both fear and the influence of illicit favours. No doubt, fearlessness as a personality trait may well vary from human to human. But the state can and must enable judges to achieve a level of fierce independence by assuring them of protection from reprisals to the decisions they make.
Conversely, if the judges are of a country where fear reigns supreme, and the proverbial sword of Damocles constantly hangs over their heads, only a few judges dare to stand up to the powers that be and risk being sacrificed at the altar of the constitution. Such singular judges are uncompromising and incorruptible, and a ray of hope in a country where corruption courses like blood through the veins of the powerful and where widespread injustice is the norm. Naturally, the “deep state” considers such judges to be a perennial threat, and a clash between the two becomes inevitable, sooner or later.
An unforgettable instance of this was when the dictator Pervez Musharraf was vying to become president for life during his eighth year of rule, with the backing of Pakistan Muslim League-Q (PML-Q), but the then-CJP Iftikhar Chaudhry refused to do his bidding. Musharraf was infuriated at the CJP’s nerve, and filed a reference against him with the Supreme Judicial Council (SJC). But this led to a mass movement led by lawyers. Meanwhile Justice Chaudhry challenged the presidential reference against him in the Supreme Court (SC), which the SC honored, thereby quashing the reference and restoring Justice Iftikhar. However, Musharraf did not take this lying down and, on November 3, 2007, declared a nationwide emergency, placing judges under house arrest and many lawyers behind bars. These and following actions by the military dictator gave much steam to the lawyers’ movement, causing considerable damage to Musharraf’s grip on power. Ultimately, he had to conduct general elections, and so the movement played its role in putting democracy back on track.
More recently, another SC judge is facing hostility. Justice Qazi Faez Isa is a fiercely independent judge whose fearless judgments reflect his fidelity to the rule of law and commitment to the supremacy of the Constitution. His judgment in the Faizabad dharna was scathing and made many uncomfortable. Review petitions were filed against him and an SJC reference was haphazardly drawn up under the auspices of Mirza Shahzad Akbar. The office of the president of Pakistan was employed to “settle the score”. One glance at the reference reveals that it was casually filed without the application of an independent mind. Both the PBC and the Bar Association condemned the reference.
However, former CJP Asif Saeed Khosa acted on the reference and sent a show-cause notice to Justice Isa. A detailed reply was made by Justice Qazi, not only denying the allegations against him but also raising objections as to the maintainability of the reference. In response to the presidential reference’s demand, he quoted Section 116 of the Income Tax Ordinance, 2001, whereby he was not under a legal obligation to declare the assets owned by his wife and children, who were not dependent on him. He called the powers of the reference into question before the SC under Article 184(3) of the Constitution.
After five long months of hearings in the SC, the dust finally seems to have settled down in this high-profile case. The SC bench has grilled Farogh Naseem (the prosecuting counsel), demanding answers to questions which the lawyer ducked.
He couldn’t answer whether there was any legal sanction behind the Asset Recovery Unit (ARU), which Mirza Shahzad Akbar had tasked to probe into Justice Isa’s alleged offshore properties. Justice Munib Akhtar sounded a death knell to the federation’s case by questioning whether money laundering was a crime at the time of filing the tax return, implying that the Constitution does not envisage a retrospective punishment.
Catching at a straw, Farogh Naseem put forward the flimsy argument that FBR was afraid to swing into action, whereas contrarily, it reportedly did take action. Also, he made a subtle argument that since Justice Qazi filed the reply to the show-cause notice, he acquiesced to the jurisdiction of the Supreme Judicial Council, meaning thereby that the SC lacked the jurisdiction under Article 184(3). Needless to emphasize that when a Court lacks the jurisdiction to proceed with the matter, no amount of consent or acquiescence to the proceedings can preclude a person from choosing proper legal forum afterwards.
Justice Qazi was facing a Hobson’s choice. Had he not replied, the proceedings would have been carried out in his absence. The legal doctrine of electing a forum does not apply in his case. And it does not bar the SC to declare reference null and void.
The SC remarked that there would be consequences if the reference was nullified. The ruling party must withdraw the frivolous reference, thereby avoid getting bogged down the country in another clash of institutions. However, sanity is hard to expect from Imran Khan and his party.
The SC should quash the vexatious reference sooner rather than late, thereby shutting the door on future attempts to silence the dissenting voices in the judiciary. It should also order to disband ARU, which not only operates in vacuum, but blatantly violates the right to privacy enshrined in Article 14 of the Constitution and undermines judicial independence.