The superior judiciary, while deciding review petitions in Justice Qazi Fai Isa’s controversy, have announced it loud and clear that no one, including a judge of the highest court in the land, is above the law. At the same time, no one, including a judge of the highest court in the land, can be denied his right to be dealt with in accordance with law. Every citizen of Pakistan, notwithstanding his status or position, is entitled to due process of law in any action detrimental to his life, liberty, body, reputation, or property under Article 4 of the Constitution and safeguarding of his fundamental rights guaranteed under Articles 9 to 28 of the Constitution. It matters little if the citizen happens to hold a high public office, he is equally subject to and entitled to the protection of law.
While judicial accountability is the cornerstone of judicial independence, it does not mean that accountability of a judge is bereft of due process of law and fair trial guaranteed under the Constitution. As custodians of the Constitution and the guardian of peoples’ fundamental rights the courts have the power to hold judges accountable under the law. Their judicial orders are obeyed by the people for, in theory, there is trust in the Courts’ moral authority which is dependent upon the personal rectitude of the Judges.
The jurisdiction of the SJC under Article 209(5) is limited to inquiring into matters concerning a Judge of the Superior Courts. It is clarified that whilst the SJC only has jurisdiction to examine the conduct and/or capacity of Judges of the Superior Courts, it may secure the attendance of any relevant person or the discovery/ production of any document whilst conducting an inquiry against a Judge (ref: Article 210 of the Constitution).
The review petitions were heard for a period of 10 months. This is unprecedented considering the fact that the scope of the Review Jurisdiction in terms of Article 188 is “very limited” and hardly a case in the exercise of the Review Jurisdiction survives. The detailed reasons have been released after an “inordinate delay” of “nine months and two days” and the same is against the dictum laid down in the cases reported as 2015 SCMR 1550, 1996 SCMR 669. (Both Full Bench Judgments). Another prime example of an “inordinate delay” in the announcement of the detailed reasons is the case titled as Asjad Ali Mali Versus Syeda Nosheen Ifitikhar (Civil Appeal No 166/2021) the short order of which was announced on the 16th of March 2021 and the detailed reasons of which are still awaited.
There appears to a confusion that the case was heard by a Full Court. Rather the case was heard by a Larger Bench comprising of 10 Judges. It needs to be highlighted that any bench which comprises of more than three judges is a larger bench whereas; a Full Court comprises of 17 judges.
The most interesting aspect of the judgment is the signature by a retired judge, who was no longer on the Bench by virtue of his retirement, keeping in view the fact that he was neither an ad hoc judge also in terms of Article 182 of the Constitution of the Islamic Republic of Pakistan 1973.
The view taken by the majority that even the dissenting judges if available were necessary members of the bench goes against the rule of ‘functus officio’. Once the dissenting judges or the judges in minority had given their opinions they became ‘functus officio’ and could not have been made part of the bench i.e., the majority.
A careful perusal of the judgment reflects that in effect there is no binding judgment of the Supreme Court requiring implementation. I would say that the judgment is a “split judgment” in the ratio of 4:4 as Justices Maqbool Baqar, Syed Mansoor Ali Shah, Amin-ud-Din Khan and Mazhar Alam Miankhel gave their majority judgment. Whereas Justices Umar Ata Bandial, Munib Akhtar, Sajjad Ali Shah, Qazi Muhammad Amin Ahmed gave their minority judgment. Mr. Justice Yahya Afridi wrote his own separate verdict while Justice Manzoor Ahmed Malik has retired. As rightly pointed out by Justice Munib Akhtar, there is no binding judgment of the Supreme Court requiring implementation in this case.
In the end I must emphasise that no one is above the law, but at the same time no one can be denied his right to be dealt with in accordance with the law. Indeed, there can be no cavil with the proposition that accountability of judges is of paramount importance. Judicial accountability is the key to an independent judiciary.
“Be you ever so high, the law is above you”-Thomas Fuller
Barrister Muhammad Ahmad Pansota is an advocate of the Supreme Court, practicing in Lahore. He tweets @pansota1
