Amidst an increased focus on accountability in the country, perhaps we should not be surprised by judicial references against judges of superior courts. The recent award of punishments to senior military officers for espionage and leaking sensitive information to foreign spy agencies is also a welcome step. However, each accountability drive has to be judged independently.
The reference against Justice Qazi Faez Isa focuses on the matter of “misconduct,” that is, that he allegedly concealed his property in London in wealth returns.
However, as with any push for accountability, this reference should be judged in terms of its background and context. Few would dispute Justice Isa’s professional reputation. His independence, integrity, and honesty are beyond doubt. He is known as a fearless, plain-speaking, and upright person. He was a leading lawyer before his elevation to the judiciary. Throughout his career, there was not a single complaint of professional misconduct or dishonesty against him. He always stood for truth, justice, and moral values. He taught professional ethics both to those who worked with him as juniors and to those who served as opposite counsel. Inevitable differences of opinion as to the content and tone of his judgments notwithstanding, he spoke for constitutionalism, fundamental rights, democracy, and freedom of expression.
While conduct unbecoming of a judge should be penalised, judges of good conduct and reputation like Justice Isa must be fully protected before the conclusion of the SJC proceedings
For example, the judicial commission comprising Justice Isa that investigated the August 8 attack in Quetta illuminated institutional and procedural flaws in terms of their effect on the security of citizens, and he proposed a way forward for institutional reforms. In the Faizabad dharna case, he attempted to establish the writ of the state within constitutional parameters. It might have ruffled a few feathers, but the context of the current reference against Justice Isa is important for any student of law and every independent observer.
The Senate has already adopted a majority resolution demanding the withdrawal of the current references against Justice Isa. The resolution said, “There is a lingering suspicion that the arbitrary and suspicious filing of references is linked with some recent verdicts of these judges.” It termed the filing of these references “a direct attack on the independence of the judiciary aimed at stifling the voices of reason, truth, and justice in the highest judiciary.” The Senate expressed solidarity with “the judges under siege.” Senior members of the legal fraternity and elected representatives of the bar councils have also questioned the intent of these references and demanded their withdrawal. The resignation of Additional Attorney General Zahid F. Ebrahim further supports the argument that these references are not a straightforward matter of judicial accountability. Rather, they appear to be part of something bigger and more complex. Zahid F. Ebrahim termed the references as “a reckless attempt to tarnish the reputation of independent individuals and browbeat the judiciary.” Further, the manner in which Justice Isa’s identity was made known to the public through a media leak, even before the Supreme Judicial Council’s (SJC) notice to the judge, raises questions about transparency. Justice Isa himself felt compelled to write to President Arif Alvi, noting that, “Selective leaks amount to character assassination, jeopardise my right to due process and fair trial, and undermine the institution of the judiciary.”
Under Article 209 of the Constitution, the SJC is mandated to proceed against a judge of the Supreme Court or high court if the judge is incapable of performing the duties of his office for the reason of mental incapacity or has been found guilty of “conduct unbecoming of a judge.”
The SJC Procedure of Enquiry (2005) also discourages conduct that is in disregard of the Code of Conduct issued under Article 209, which dictates inter alia, that a judge has “to be above reproach, and for this purpose to keep his conduct in all things, official and private, free from impropriety as expected of a judge.”
Again, the precise reference against Justice Isa is built on the ground of “misconduct,” that is, that he allegedly concealed his property in London in wealth returns. The SJC is constitutionally mandated to examine this ground, and indeed the legal fraternity has always urged the SJC to hold judges accountable for misconduct provided that the accountability proceedings are bona fide, transparent, and all-inclusive.
A reference filed with any kind of prejudice jeopardises the independence of the judiciary and tarnishes the dignity of honourable judges. Thus, lawyers demand that “accountability” proceedings should never be an avenue for targeted retribution or selective victimisation. Concerns that the accountability measures against Justice Isa, and perhaps more widely, have taken a disturbingly selective turn are provoking high-level criticism. While conduct unbecoming of a judge should be penalised, judges of good conduct and reputation like Justice Isa must be fully protected before the conclusion of the SJC proceedings.
Given the context of the reference against Justice Isa, hasty judgments and scurrilous remarks should be avoided. Judicial integrity and the due process of law are sacrosanct. The media should observe the requirements of the law when commenting and reporting on state institutions and current SJC proceedings.
The writer is a lawyer.