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SC Judgement On Justice Isa Case Sets A Precedent For Judicial Independence

The Supreme Court’s (SC) decision to accept review petitions challenging the court’s previous verdict sets an important precedent for Judicial independence in Pakistan. With a majority of 6-4, the SC dismissed the merits of the presidential reference filed by the government against Justice Qazi Faez Isa.

On June 19, 2020, the supreme court – by a majority of 7-3 – had accepted the presidential reference, sending the matter to the Federal Board of Revenue (FBR) to conduct a further inquiry into offshore assets of Justice Isa’s spouse, which the government alleged were acquired through dubious means. The reference was prepared by then Minister of Law and Justice, Farogh Naseem and Adviser to the Prime Minister on Accountability and Interior, Shahzad Akbar. The petitioners had asked the Supreme Judicial Council for Justice Isa’s removal. The Supreme Judicial council, a constitutional body acting under Article 209 of the constitution of Pakistan, is the sole forum for the accountability of superior court judges.

The origins of the reference date back to 2019 when Justice Isa became the target of what is largely believed to be a smear campaign after he wrote a report on the Faizabad sit-in when certain religious groups brought the country to a depressing halt over a minor change in the wording of a religious oath of office. This came after a series of inquiries in which Justice Isa had written critical and damning conclusions regarding corridors of power in Pakistan.

The ruling coalition headed by PTI had not only filed review petitions against the Faizabad sit-in judgment, but they also used extremely derogatory remarks and phrases against Justice Isa, questioning his credibility, and challenging his appointment as chief justice of the Balochistan high court. The reference is rooted in the same review petitions. Ms. Firdous Ashiq Awan, who was special assistant to Prime minister at that time, held a press conference in which she labelled the Reference as “ehtisaab ka shakinja” (a clamp of accountability) against the judge as he had “played a shot by stepping out of the crease”.

According to the reference Justice Isa had failed to declare in his wealth statements, three different properties, jointly owned by his wife and children in London, as was required of him in terms of Section 116(1)(b) of the income tax ordinance 2001. It was contended that it can therefore not be ruled out that the properties may have been acquired through money laundering. The SC accepted the reference and issued a further inquiry with a majority of 7-3. However, In response, Justice Isa filed a constitutional review petition under article 184/3 against the proceedings.

The Chief Justice while exercising his extraordinary discretionary powers constituted a new bench for the review, comprising 6 judges, excluding the three judges who took the minority view. Justice Isa and his wife filed miscellaneous applications, under Order XXVI, Rule 8 of the Supreme Court Rules, 1980, arguing that the review should be undertaken by the same bench, and that a 6 judge bench could not overturn the decision of a 7 majority bench. The SC then constituted a 10 judge bench, which concluded that the Reference was “malice in fact and law” which means that it was considered both ill-intentioned and illegal – something that has been corroborated by the former director general of the Federal Investigation Agency (FIA) Bashir Memon, who recently alleged that he was pressured by Prime Minister Imran Khan, Naseem and Akbar to initiate a case against Justice Qazi Faez Isa. The government continues to deny these allegations.

This is not only a victory for Justice Isa and his family but, potentially, also for supporters of democracy, independence of judiciary and for those who believe in constitutionalism in Pakistan. This decision will have an impact on our judicial system, giving judges the freedom to exercise their constitutional duty without fear of reprisals from government officials. Let’s wait for the detailed reasons behind the said order which will further throw light on what the future of Pakistani judiciary will look like.

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Naya Daur