“All the rights secured to the citizens under the constitution are worth nothing, and a mere bubble, except guaranteed to them by an independent and virtuous judiciary,” wrote Andrew Jackson.
An independent judiciary is forms the core of any justice system. Our Constitution provides that “the independence of the judiciary shall be fully secured.” While deciding the reference against Justice Qazi Faez Isa, the Supreme Court has promoted this constitutional aim and has established the independence of the judiciary. The judgment has given hope to people as to the supremacy of the constitution and the rule of law in Pakistan.
Briefly, the reference against Justice Isa stated that he has committed gross misconduct by concealing properties abroad and that the source to acquire these properties was not disclosed in tax returns. It is alleged that he violated Section 116 (1) (b) and Section 116 (2) of the Income Tax Ordinance 2001 by concealing foreign properties. While doing so, he violated Article II and III of the judges’ code of conduct, and thus was liable to be removed by the Supreme Judicial Council (SJC) under Article 209 of the Constitution.
Justice Isa and various bar councils called the reference unconstitutional, illegal and mala fide, and thus an attack on the independence of the judiciary. More specifically, Justice Isa argued that he cannot be held accountable for properties owned by his spouse and children purchased through independent financial means. He claimed that the reference had been framed on the basis of information collected unlawfully as his judgments irked certain quarters.
Accountability of judges has to be in accordance with the law. For understanding and application of the law, its context has to be appreciated. This also applies in Justice Isa’s case
The SC has quashed the reference; however, it has directed the FBR to seek an explanation from the spouse and children of Justice Isa regarding the source of funds for acquiring the three foreign properties. However, three judges, namely, Justice Maqbool Baqir, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, did not agree with sending the matter to the FBR. They observed, “One of our pivotal constitutional values is that the independence of the judiciary shall be fully secured.” They reiterated, “In our constitutional democracy, neither the petitioner judge, nor any other judge, or any individual or any institution, is above the law.” At the same time, they stressed, “It is equally important that a judge, like any other citizen of Pakistan, enjoys the inalienable constitutional right to be treated in accordance with law.” The rationality of the minority opinion may be appreciated as it concludes the reference on an objective assessment of the nature and background of the reference apparently filed to malign an independent judge and enfeeble the judiciary.
Seemingly, the SC has attempted to create a balance between judicial independence and judicial accountability, as both are essential for the strong and free judiciary. Of course, judicial accountability and judicial independence are equally important. However, as SC has emphasized, the accountability of judges has to be in accordance with the law. For understanding and application of the law, its context has to be appreciated. It also applies in Justice Isa’s case.
In this regard, two cases are important: first, the judicial commission report on the August 8 attack in Quetta that illuminated failure of the state institutions in the security of citizens; second, the Faizabad dharna case, in which Justice Isa made judicial comments urging all institutions to work within the parameters of the Constitution. These comments made those in corridors of power uncomfortable. Rest is history. The honorable judge and his family were subjected to harassment through a social media campaign. The so-called evidence forming the basis of the reference was collected through unlawful means. Therefore, the Senate termed the filing of the reference “a direct attack on the independence of the judiciary aimed at stifling the voices of reason, truth, and justice in the highest judiciary.” The legal fraternity questioned the intent of the reference and demanded its withdrawal but it was ignored.
The government persisted to pursue a tainted reference while ignoring sane advice. Justice Isa himself felt compelled to write to the president that, “selective leaks amount to character assassination jeopardise my right to due process and fair trial, and undermine the institution of the judiciary.” However, no one bothered.
The SJC issued a show-cause notice to Justice Isa. Again, the honorable judge pleaded before both the SJC and the SC that the reference is filed with a mala fide intent against the petitioner and to weaken the judiciary. While accepting the petitions, the SC has quashed the reference declaring it ‘invalid.’ However, the FBR is directed to conduct an enquiry from Justice Isa’s family regarding the purchase of the three foreign properties and submit its report to the SJC, which may take an appropriate decision thereon.
With due respect, given mala fide intent of the reference and a reasonable explanation as to the source of money for buying the properties by Justice Isa’s spouse, the FBR enquiry seems unnecessary. It might cause further harassment to Justice Isa and his family. With a malicious background of the reference and lack of institutional independence, the FBR may not be able to conduct an independent enquiry. Political and executive influence in the conduct of the FBR proceedings may damage the ultimate cause of judicial independence and accountability.
Our history is replete with attacks on the independence of the judiciary; therefore, the bench and the bar need to remain vigilant. Any onslaught on judicial independence must be resisted to promote rule of law and constitutionalism in Pakistan. While pursuing the noble cause of accountability the independence of the judiciary must also be fully protected. In doing so, the final judgment on the reference may also be reviewed.
The writer is an advocate in the Supreme Court of Pakistan