By Ailia Zehra, Ali Warsi and Ziyad Faisal
Supreme Court of Pakistan last week quashed the presidential reference filed against Justice Qazi Faez Isa as well as the proceedings against him in the Supreme Judicial Council (SJC) which began following the reference. While the judge was vindicated after quashing of the reference, the apex court stopped short of giving him a clean chit over the allegations that he was guilty of misconduct for concealing the information about his families’ properties in the UK. The order, therefore, seems to have opened up a Pandora's box of legalities.
‘Deferring of case to FBR undermines judicial independence’
In its short order, the court directed the Federal Board of Revenue (FBR) to hold an inquiry into the assets and taxes paid by Justice Isa’s family.
Lawyers’ community and the civil society have expressed concerns over the SC’s decision to defer the case to the FBR.
They are of the opinion that the executive has been empowered by the court itself at the cost of judicial independence and dissuading other judges in the system to pass verdicts that challenge the powerful branches of the government.
Reference was legally flawed to begin with
Lawyer Basil Nabil Malik told Naya Daur that the reference was deeply flawed: “in as much as the President is obliged to form an independent opinion as to whether the material before it is sufficient to send a reference. It appears that this was not done.”
Usama Khawar, a Lahore based lawyer and activist, says that the mala fides aspect is itself strong grounds for challenging a reference. In this case, he says, “Justice Isa had indicated that he was under surveillance, his wife and children harassed, and that his phone was being tapped.”
Barrister Awais Babar, meanwhile, emphasized that Justice Isa is “a man of the rule of law” and that the reference against him has much to do with that. According to Babar, it was unlikely that the judiciary would permit such a reference to stand, since it could open the possibility for the executive to bring pressure to bear against judges.
‘Govt incorrectly assumed Justice Isa had limited means’
Babar says that high court judges are often individuals who make large amounts of money – often in their legal practice before they become judges. Babar suspects that the government's assumption in questioning Justice Isa's sources of wealth was based on a wrong popular assumption that a judge of his stature would be someone of very limited means.
https://twitter.com/reema_omer/status/1273993421334740992?s=20
How Farogh Naseem’s futile attempts to defend a weak reference embarrassed govt
Meanwhile, Farogh Naseem's act of resigning as law minister just a day before showing up to the SC as the government's counsel raised eyebrows.
On June 1, Justice Isa had harshly criticised the move and told the court that Naseem tendered his resignation as the federal law minister just one day before the hearing of the case because he wanted to 'enjoy the benefits and privileges of his office till the proverbial eleventh hour'.
The judge went on to term Farogh Naseem a ‘tout’. “One is further constrained to point out that his conduct also comes within the definition of ‘tout’ mentioned in section 2(m) the Legal Practitioners and Bar Councils Act, 1973, which also describes, a tout as one ‘who procures…to any person interested in any legal business to procure’,” Justice Isa said.
Moreover, the government’s counsel faced another embarrassing moment on June 12, when the bench asked Naseem to ‘explain under which law Justice Isa must explain assets belonging to his wife. He replied that this duty stems from Holy Quran, adding that husbands are the “protectors and guardians of their wives and responsible for them”.
Justice Syed Mansoor Ali Shah was not convinced with the argument and he snubbed the counsel by saying that this statement takes away the right of women to be independent wealth owners under the legislation that safeguards the independent legal status of women in Pakistan.
Civil society including women rights activists strongly condemned Naseem's remarks in the court and termed them misogynistic.
“We, members of women’s human rights platforms, cultural groups, youth activists, legal community, academicians, litterateurs, and civil society activists are outraged by, and strongly condemn the highly derogatory, inflammatory, unconstitutional, and openly sexist, misogynist remarks made by Mr. Farogh Nasim, the Government Counsel, during a hearing of the Government’s reference filed against Hon. Justice Qazi Faez Isa in the Hon. SCP", a statement said.
‘Mala fide intentions’ grounds for president’s dismissal?
The joint opposition welcomed the Supreme Court’s verdict, but demanded that President Arif Alvi and Prime Minister Imran Khan should step down for filing an "unlawful, unconstitutional, and false reference based on pure mala fide intentions."
Naya Daur asked lawyers if there can be consequences for the President and the government from the dismissal of the presidential reference.
Basil Nabi Malik opines that if mala fides circumstances are found in fact, the government officials responsible should be held accountable. “This would include the ARU officials as well as all those directly involved in the attempt to remove an independent-minded judge for personal gain. This is all the more important as a lack of consequences will only serve to encourage similar Ill-intended actions in the future as well. If there is no deterrent, there will ne no reason to stop doing such things,” he said.
But this is unlikely to have direct consequences for the President, the legal commentators point out.
According to Usama Khawar, “It might prove difficult to pin down the President on the issue of whether his decisions in filing the reference were mala fides.” He is of the opinion that it would be easier to deem the then Law Minister Farogh Naseem to be responsible. “But if there had been any question of consequences for government figures, one would expect some indication of that in the operative part of the judgement. The short order does not contain any such thing,” he added.
“Procedurally,” Khawar emphasizes, “there is only one way for the President to be removed. The constitutional way is through impeachment, with a two-thirds majority in Parliament. As for the judiciary, in our constitutional system, it has no powers to address this.”
Khawar is concerned about the order means for the future of the judiciary. “If the Supreme Court has not ordered action on the mala fides aspect of the reference, which is what seems to have been the case, there could be grave consequences for the independence of the judiciary. It could result in situations where the executive harrasses the judiciary – which is the impression one gets from the reference against Justice Isa too.”
Passing the buck to FBR
The Supreme Court, in its order, asked the FBR to hold an inquiry into the assets of Justice Isa’s wife and children and submit its report to the Supreme Judicial Council within 75 days. According to the para 10 of the written order, in case FBR fails to file a report within the given time, after 100 days, the Chief Justice of Pakistan, who is also the chairman of the SJC, will order the secretary of SJC to write to FBR.
If the FBR files the report in response, it will be presented by its chairman to SJC Chairman ‘who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine’.
However, if the FBR still fails to file a response, the SJC may ‘direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner (or any other person as deemed appropriate) as the Council may determine’.
‘SC verdict sets up a new complaint against Justice Isa’
Senior lawyer Babar Sattar, who was also leading Justice Qazi Faez Isa’s legal team before leaving the country, is of the opinion that by handing the case to FBR ‘to audit Mrs [Qazi Faez Isa’s] old records’, ‘even though 5-yr period of limitation has run’, ‘SC has set-up a new complaint’ against the judge. He also believes that by ordering the FBR chairman to submit a report in SJC, the court already assumes that Mrs Qazi Faez Isa won’t get a clean chit from FBR. In a series of tweets he did on June 19, Sattar said that ‘in effect there is a complaint-in-waiting against Qazi Faez Isa to be taken up in 75 days’.
However, tax practitioner Muhammad Imran Hussain, who works at Mehboob Sheikh & Co, Chartered Accountants, disagrees. He says that Babar Sattar’s apprehensions about the waiver of the 5-year limitation are ill-founded since there is no such thing mentioned in the short order. He argues that for all the properties acquired before 2014, the judge’s wife can claim that the case is already time-barred. For the properties declared in 2014, the time-lapse rule may be invoked after June 30, 2020. However, it would be better, he said, not to claim the immunity under this rule for the property declared in 2014. “She should join the proceedings and present all the documents required of her for the properties declared in 2014” Imran told Naya Daur.
Another tax lawyer, who spoke to Naya Daur on the condition of anonymity, partly agreed with Hussain. He was of the view that the time-lapse rule might be waived if the chairman FBR believed that the national exchequer could incur heavy losses by allowing the rule to be invoked, and that the FBR chairperson could use their discretionary powers to decide what constituted as ‘heavy losses to the national exchequer’.
‘Govt cannot coerce FBR into harassing Justice Isa’s family’
A senior officer at the FBR dismisses this argument, saying that the chairperson cannot exercise waiver powers at their discretion in such a high-profile case and that any evidence of mala fide on the part of FBR may be taken up in the court.
“Let’s not forget that there is a Supreme Court judge’s wife on trial here. It is true that the government can try pressure tactics, but no chairman or commissioner would want their jobs to be at stake in such a case."
He added, "There is very little room for maneuver and I don’t think that the government will be able to coerce the FBR officials into unnecessarily harassing the wife of a future chief justice in a case that is due to be re-evaluated by the apex court in a few months’ time."
On the issue of limitation, the official said that it could be waived only if the property was bought before 2014 but declared before the FBR after 2014. He also believed that it would be better for Mrs Justice Qazi Faez Isa to claim the time-lapse option. “If she doesn’t, it might be very difficult for her to satisfy FBR, especially on the property declared in 2003. It is highly unlikely that she’d be able to provide all the details of the money-trail for a property bought 17 years ago”, the official told Naya Daur.
The detailed judgment might give more guidance to the FBR but for now it seems that the ordeal of Justice Isa is far from over. In fact, the FBR route has also been termed as a ‘Damocles sword’ for it would not only proscribe the independence of judges but will also provide ample space of media trials that have turned into a norm under the garb of ‘accountability drive.’
But the Qazi Isa reference saga has also exposed another high handed method that the executive arms of the state resorted to in their zeal to ‘fix’ the judge: surveillance.
Will surveillance of judges go unpunished?
Justice Qazi Faez Isa had alleged that the government hired a private investigation agency to spy on him and his family and the information about their properties was acquired through surveillance. The Supreme Court had on one occasion, during the proceedings of the case, reminded the federal government that a government in the past was disqualified on the charges of spying on the judiciary.
“You must remember that a democratically elected government was previously disqualified for surveillance of the judges” Justice Maqbool Baqar had told Dr Farogh Naseem during the hearing of the case on June 11.
However, the apex court's short order does not mention as to what action ought to be taken against those responsible for surveillance of the judge.
President Farooq Khan Laghari had dismissed the government and the Supreme Court later upheld the step, saying that spying on the judges was a fair justification for dissolution of the government.
Lawyer and privacy rights activist Usama Khilji says, "Reports of surveillance of judges of the Supreme Court among others have always been worrying, including in Justice Faez Qazi Isa’a case."
He added that there are Supreme Court precedents that declare spying on judge unconstitutional and illegal. "The state has also expanded its surveillance apparatus in recent years with the setting up of a Web Monitoring System and making registration of VPNs mandatory," he told Naya Daur.
Khawar said that such actions indicate mala fide intentions of the state that wants to silence voices, including of senior judges, that are critical of unconstitutional excesses and abuse of power by state institutions.
"It is important that this critical aspect of the case is also addressed and those who ordered illegal surveillance be held accountable; else we risk further weakening out already fragile democracy," he added.
Supreme Court of Pakistan last week quashed the presidential reference filed against Justice Qazi Faez Isa as well as the proceedings against him in the Supreme Judicial Council (SJC) which began following the reference. While the judge was vindicated after quashing of the reference, the apex court stopped short of giving him a clean chit over the allegations that he was guilty of misconduct for concealing the information about his families’ properties in the UK. The order, therefore, seems to have opened up a Pandora's box of legalities.
‘Deferring of case to FBR undermines judicial independence’
In its short order, the court directed the Federal Board of Revenue (FBR) to hold an inquiry into the assets and taxes paid by Justice Isa’s family.
Lawyers’ community and the civil society have expressed concerns over the SC’s decision to defer the case to the FBR.
They are of the opinion that the executive has been empowered by the court itself at the cost of judicial independence and dissuading other judges in the system to pass verdicts that challenge the powerful branches of the government.
Reference was legally flawed to begin with
Legal quarters think that the reference was legally flawed to begin with – a position taken by Justice Isa in the course of the hearings.
Lawyer Basil Nabil Malik told Naya Daur that the reference was deeply flawed: “in as much as the President is obliged to form an independent opinion as to whether the material before it is sufficient to send a reference. It appears that this was not done.”
Usama Khawar, a Lahore based lawyer and activist, says that the mala fides aspect is itself strong grounds for challenging a reference. In this case, he says, “Justice Isa had indicated that he was under surveillance, his wife and children harassed, and that his phone was being tapped.”
Barrister Awais Babar, meanwhile, emphasized that Justice Isa is “a man of the rule of law” and that the reference against him has much to do with that. According to Babar, it was unlikely that the judiciary would permit such a reference to stand, since it could open the possibility for the executive to bring pressure to bear against judges.
‘Govt incorrectly assumed Justice Isa had limited means’
Babar says that high court judges are often individuals who make large amounts of money – often in their legal practice before they become judges. Babar suspects that the government's assumption in questioning Justice Isa's sources of wealth was based on a wrong popular assumption that a judge of his stature would be someone of very limited means.
https://twitter.com/reema_omer/status/1273993421334740992?s=20
How Farogh Naseem’s futile attempts to defend a weak reference embarrassed govt
Meanwhile, Farogh Naseem's act of resigning as law minister just a day before showing up to the SC as the government's counsel raised eyebrows.
On June 1, Justice Isa had harshly criticised the move and told the court that Naseem tendered his resignation as the federal law minister just one day before the hearing of the case because he wanted to 'enjoy the benefits and privileges of his office till the proverbial eleventh hour'.
The judge went on to term Farogh Naseem a ‘tout’. “One is further constrained to point out that his conduct also comes within the definition of ‘tout’ mentioned in section 2(m) the Legal Practitioners and Bar Councils Act, 1973, which also describes, a tout as one ‘who procures…to any person interested in any legal business to procure’,” Justice Isa said.
Moreover, the government’s counsel faced another embarrassing moment on June 12, when the bench asked Naseem to ‘explain under which law Justice Isa must explain assets belonging to his wife. He replied that this duty stems from Holy Quran, adding that husbands are the “protectors and guardians of their wives and responsible for them”.
Justice Syed Mansoor Ali Shah was not convinced with the argument and he snubbed the counsel by saying that this statement takes away the right of women to be independent wealth owners under the legislation that safeguards the independent legal status of women in Pakistan.
Civil society including women rights activists strongly condemned Naseem's remarks in the court and termed them misogynistic.
“We, members of women’s human rights platforms, cultural groups, youth activists, legal community, academicians, litterateurs, and civil society activists are outraged by, and strongly condemn the highly derogatory, inflammatory, unconstitutional, and openly sexist, misogynist remarks made by Mr. Farogh Nasim, the Government Counsel, during a hearing of the Government’s reference filed against Hon. Justice Qazi Faez Isa in the Hon. SCP", a statement said.
‘Mala fide intentions’ grounds for president’s dismissal?
The joint opposition welcomed the Supreme Court’s verdict, but demanded that President Arif Alvi and Prime Minister Imran Khan should step down for filing an "unlawful, unconstitutional, and false reference based on pure mala fide intentions."
Naya Daur asked lawyers if there can be consequences for the President and the government from the dismissal of the presidential reference.
Basil Nabi Malik opines that if mala fides circumstances are found in fact, the government officials responsible should be held accountable. “This would include the ARU officials as well as all those directly involved in the attempt to remove an independent-minded judge for personal gain. This is all the more important as a lack of consequences will only serve to encourage similar Ill-intended actions in the future as well. If there is no deterrent, there will ne no reason to stop doing such things,” he said.
But this is unlikely to have direct consequences for the President, the legal commentators point out.
According to Usama Khawar, “It might prove difficult to pin down the President on the issue of whether his decisions in filing the reference were mala fides.” He is of the opinion that it would be easier to deem the then Law Minister Farogh Naseem to be responsible. “But if there had been any question of consequences for government figures, one would expect some indication of that in the operative part of the judgement. The short order does not contain any such thing,” he added.
“Procedurally,” Khawar emphasizes, “there is only one way for the President to be removed. The constitutional way is through impeachment, with a two-thirds majority in Parliament. As for the judiciary, in our constitutional system, it has no powers to address this.”
Khawar is concerned about the order means for the future of the judiciary. “If the Supreme Court has not ordered action on the mala fides aspect of the reference, which is what seems to have been the case, there could be grave consequences for the independence of the judiciary. It could result in situations where the executive harrasses the judiciary – which is the impression one gets from the reference against Justice Isa too.”
Passing the buck to FBR
The Supreme Court, in its order, asked the FBR to hold an inquiry into the assets of Justice Isa’s wife and children and submit its report to the Supreme Judicial Council within 75 days. According to the para 10 of the written order, in case FBR fails to file a report within the given time, after 100 days, the Chief Justice of Pakistan, who is also the chairman of the SJC, will order the secretary of SJC to write to FBR.
If the FBR files the report in response, it will be presented by its chairman to SJC Chairman ‘who shall, in such manner as is deemed appropriate, have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine’.
However, if the FBR still fails to file a response, the SJC may ‘direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner (or any other person as deemed appropriate) as the Council may determine’.
‘SC verdict sets up a new complaint against Justice Isa’
Senior lawyer Babar Sattar, who was also leading Justice Qazi Faez Isa’s legal team before leaving the country, is of the opinion that by handing the case to FBR ‘to audit Mrs [Qazi Faez Isa’s] old records’, ‘even though 5-yr period of limitation has run’, ‘SC has set-up a new complaint’ against the judge. He also believes that by ordering the FBR chairman to submit a report in SJC, the court already assumes that Mrs Qazi Faez Isa won’t get a clean chit from FBR. In a series of tweets he did on June 19, Sattar said that ‘in effect there is a complaint-in-waiting against Qazi Faez Isa to be taken up in 75 days’.
However, tax practitioner Muhammad Imran Hussain, who works at Mehboob Sheikh & Co, Chartered Accountants, disagrees. He says that Babar Sattar’s apprehensions about the waiver of the 5-year limitation are ill-founded since there is no such thing mentioned in the short order. He argues that for all the properties acquired before 2014, the judge’s wife can claim that the case is already time-barred. For the properties declared in 2014, the time-lapse rule may be invoked after June 30, 2020. However, it would be better, he said, not to claim the immunity under this rule for the property declared in 2014. “She should join the proceedings and present all the documents required of her for the properties declared in 2014” Imran told Naya Daur.
Another tax lawyer, who spoke to Naya Daur on the condition of anonymity, partly agreed with Hussain. He was of the view that the time-lapse rule might be waived if the chairman FBR believed that the national exchequer could incur heavy losses by allowing the rule to be invoked, and that the FBR chairperson could use their discretionary powers to decide what constituted as ‘heavy losses to the national exchequer’.
‘Govt cannot coerce FBR into harassing Justice Isa’s family’
A senior officer at the FBR dismisses this argument, saying that the chairperson cannot exercise waiver powers at their discretion in such a high-profile case and that any evidence of mala fide on the part of FBR may be taken up in the court.
“Let’s not forget that there is a Supreme Court judge’s wife on trial here. It is true that the government can try pressure tactics, but no chairman or commissioner would want their jobs to be at stake in such a case."
He added, "There is very little room for maneuver and I don’t think that the government will be able to coerce the FBR officials into unnecessarily harassing the wife of a future chief justice in a case that is due to be re-evaluated by the apex court in a few months’ time."
On the issue of limitation, the official said that it could be waived only if the property was bought before 2014 but declared before the FBR after 2014. He also believed that it would be better for Mrs Justice Qazi Faez Isa to claim the time-lapse option. “If she doesn’t, it might be very difficult for her to satisfy FBR, especially on the property declared in 2003. It is highly unlikely that she’d be able to provide all the details of the money-trail for a property bought 17 years ago”, the official told Naya Daur.
The detailed judgment might give more guidance to the FBR but for now it seems that the ordeal of Justice Isa is far from over. In fact, the FBR route has also been termed as a ‘Damocles sword’ for it would not only proscribe the independence of judges but will also provide ample space of media trials that have turned into a norm under the garb of ‘accountability drive.’
But the Qazi Isa reference saga has also exposed another high handed method that the executive arms of the state resorted to in their zeal to ‘fix’ the judge: surveillance.
Will surveillance of judges go unpunished?
Justice Qazi Faez Isa had alleged that the government hired a private investigation agency to spy on him and his family and the information about their properties was acquired through surveillance. The Supreme Court had on one occasion, during the proceedings of the case, reminded the federal government that a government in the past was disqualified on the charges of spying on the judiciary.
“You must remember that a democratically elected government was previously disqualified for surveillance of the judges” Justice Maqbool Baqar had told Dr Farogh Naseem during the hearing of the case on June 11.
However, the apex court's short order does not mention as to what action ought to be taken against those responsible for surveillance of the judge.
In 1996, former prime minister Benazir Bhutto’s second government was dismissed on a number of charges which included surveillance of the judges.
President Farooq Khan Laghari had dismissed the government and the Supreme Court later upheld the step, saying that spying on the judges was a fair justification for dissolution of the government.
Lawyer and privacy rights activist Usama Khilji says, "Reports of surveillance of judges of the Supreme Court among others have always been worrying, including in Justice Faez Qazi Isa’a case."
He added that there are Supreme Court precedents that declare spying on judge unconstitutional and illegal. "The state has also expanded its surveillance apparatus in recent years with the setting up of a Web Monitoring System and making registration of VPNs mandatory," he told Naya Daur.
Khawar said that such actions indicate mala fide intentions of the state that wants to silence voices, including of senior judges, that are critical of unconstitutional excesses and abuse of power by state institutions.
"It is important that this critical aspect of the case is also addressed and those who ordered illegal surveillance be held accountable; else we risk further weakening out already fragile democracy," he added.