Justice Qazi Faez Isa has challenged the references pending against him in the Supreme Judicial Council (SJC) before the Supreme Court on the basis that these references are mala fide. Many commentators including myself
Last week was the worst phase of this saga. The former Attorney General of Pakistan (AGP), Anwar Mansoor Khan, during the proceedings of Justice Isa’s application alleged that some of the justices may have been helping the petitioner. Such a statement by a senior advocate made the Justices very angry and rightly so. Hence, the headline, ‘submit apology or proof’. These can be the most grave allegations any judge has to hear that too to in the open court.
The government via the Law minister immediately distanced itself from this particular submission made by the AGP and announced that no such instructions were given. Whereas, Anwar Mansoor Khan, who resigned the following day, claims otherwise: he has categorically proclaimed that this is exactly what he was instructed with and the law minister was present during the proceedings and could have pointed it to the court that such were not their instructions.
So now a blame game has ensued. Who amongst them is telling the truth, Anwar Mansoor Khan or Barrister Farogh Naseem?
Barrister Aitzaz Ahsan answered this question in Muhammad Malik’s show on Hum News. He said that it is likely that the former AGP is telling the truth. “Farogh Naseem being a senior attorney himself could have just stood up and requested a brief recess from the bench that they would like to speak to their counsel for some clarification”, Ahsan added. It is not very uncommon for benches to receive such requests for adjournment and are granted quite ordinarily. Barrister Farogh Naseem knowing how the proceedings take place in courts chose not to intervene and that indicates government’s involvement in the said controversial statement though verbally uttered by the former AGP.
Having said that, legally and professionally speaking, was Anwar Mansoor Khan at no fault whether or not he received such instructions? He certainly is. Even if such instructions were received by him as he says they were, he should have rightly recused himself from the case keeping in view the dignity of court or should have at least made a demand from government to see the evidence of such allegations and once he was satisfied to the best of his ability only then his submissions would have been legal in every sense of the word.
Regardless of who is ultimately blamed for this yet another dramatic episode, neither the government nor Anwar Mansoor Khan will face any consequences. Both Anwar Mansoor Khan and Barrister Farogh Naseem, due to their strong ties to establishment, have enjoyed leniency in the past few months when it comes to career blunders. Not too long ago, after Gen. Musharraf’s conviction, both of them affronted the Honourable Justice of Peshawar High Court Mr. Justice Waqar Ahmed Seth. One of them even went as far as calling the Honourable Justice ‘mentally incapacitated’. Nevertheless, they were spared and no contempt proceedings was initiated against either of them nor anyone dared to submit a contempt of court petition.
Only yesterday, the Pakistan Bar Council (PBC) issued a statement calling upon the Prime Minister Imran Khan to expel Barrister Farogh Naseem from the cabinet on the charge that he was well aware of the comments against judges. But then, where will this end? Government is unlikely to even consider such a demand as it will open a Pandora’s box and give rise to a new dilemma as to who instructed Farogh Naseem? And who instructed Farogh Naseem, and so on. The real question is about what would happen to the Honourable Justice Qazi Faez Isa’s career as a Supreme Court justice.
What is the case against Justice Qazi Faez Esa? The case against him is that the three properties acquired in London on lease by his wife and children between 2011 and 2015 (which are in their names) was not disclosed by the judge in his wealth statements submitted to the FBR. Therefore, in effect, the underlying allegation against the justice is that these properties are actually his, bought by him with his money, and there is a likelihood that this money was either ill-gotten and that to hide this money Justice Isa got them in his wife and children’s name. This is the real gist of the entire case. Add to that the money trail argument: the new weapon with which the state can doubt anybody.
Justice Isa contests this supposition and claims that he is not bound by law to disclose the properties in his wife and children’s name as they are theirs, acquired through their own money.
The fellow justices are in a fix. If they give an adverse finding against Justice Qazi Faez Isa this will not only make them vulnerable but also all the justices in future as there is no evidence of Justice Isa having committed any wrong and is being embarrassed with the ‘money trail’ argument not only in courts but at other forums too. If they decide otherwise, they are vulnerable as Justice Isa will emerge as a ‘hero’ and all this exercise will yield a completely antithetical result of the entire effort. The vulnerability of judges is intrinsically connected to the case of Justice Qazi Faez Isa and that of the whole judicial system. Imagine judges being doubted every now and then with respect to their wealth. The last thing this country needs is a set of vulnerable judges, men and women who ought to be secure and safe for a strong justice system to exist.
This saga sadly is based on a false assumption by the movers of this reference that Justice Isa will step down himself. He did not and now it is quandary as to how to end this long play.
What would happen in the situation if Justice Qazi Faez Isa is dismissed as a result of reference against him before the Supreme Judicial Council irrespective of the merits of the case against him? The outcome will be that a Justice of the Supreme court would have been dismissed on the assumption that he bought the properties in his wife and children’s name. It will remain a speculation because there is no mechanism to infer or confirm the set of allegations against him.
Many people are surprised as to how judges could be so rich. Here is a little explanation to all those who are using the money trail argument to embarrass the very man they expect justice from.
Judges are usually rich because the man who becomes a high court judge is an advocate of all courts for a considerable number of years. Not every lawyer can become a high court justice. Only those who have a prominent and successful law practice are selected amongst thousands of advocates to serve as justices. Therefore, a justice is already a rich man. Life of a successful advocate is chaotic and rewarding. Once people believe in a lawyer’s skill and capabilities, he ends up getting a multitude of cases and handsome legal fees. The salary of a high court judge is around one million, which is a lot more in the eyes of a common man but for that justice only peanuts compared to his previous income.
Barring few exceptions, it is the honour and sense of public service that convinces a successful advocate to become a judge of superior court. It is not the money per se. To doubt a judge just because he or his family is rich is ironic to say the very least.
Justice Isa is paying a heavy price for his outspoken views and bold judgements.
The author is a barrister practicing law in Peshawar and Islamabad. He graduated from Cardiff University. The author can be reached at firstname.lastname@example.org.