THE legal fraternity has termed the reference against Justice Qazi Faez Isa a mala fide attempt to oust an independent and upright judge, and has demanded its withdrawal. The government argues, however, that everyone is accountable and the merits of the reference shall be decided by Justice Isa’s peers in the Supreme Judicial Council (SJC). That should satisfy everyone.

Why does it not?

The first reason, sadly, is the erosion of trust in the Supreme Court (SC), and by extension, the SJC. Amanullah Kanrani, president of the Supreme Court Bar Association, was only the most recent to doubt the judiciary’s ability to do justice — even to its own.

“To distrust the judiciary,” said Balzac, “marks the beginning of the end of society”. Belief in a fair and impartial judiciary provides the bedrock of an orderly society. Even fascist regimes acknowledge the essentiality of this myth. At the height of its power, the Nazi SS was careful to conceal its control over the German judiciary, observing — “people want an independent judge. The administration of justice and the state would lose all legitimacy if the people believed judges had to decide in a particular way.”

Few, today, still retain their faith in the independence of our judiciary. Or that it treats everyone the same and decides all cases strictly as per law. And the numbers of believers decline as one gets closer to the judicial institution.

In his two years as CJP, Saqib Nisar succeeded in making atheists out of the most ardent believers. Every time he sat in court and announced his agenda before commencing hearing; every time he disallowed lawyers from representing disliked litigants; every time he shuffled benches to remove inconvenient judges; every time he solicited donations from litigants for his pet dam project; every time he prioritised results over process — he dealt another blow to the myth of judicial fairness and impartiality.

He was not the first chief justice accused of being amenable to influence. But he was certainly the first to display such open disregard for form or propriety. Who else would have (within two weeks of filing of a petition, and after a single cursory hearing) ordered confiscation of the Gulen-run Pak-Turk schools and listing of its management as a terrorist organisation; and then immediately proceeded to Turkey to be photographed with President Erdogan?

To be fair, CJP Asif Saeed Khosa, understands the urgent need to restore judicial credibility. He has disavowed his predecessor’s proclivities and focused, rightfully, on building a legacy around judicial reform and addressing judicial delays. It is too soon to forget, however, Saqib Nisar’s excesses were met with silent acquiescence by many on the bench (and the bar). Restoring public sanguinity in judicial independence shall take more time and effort. Which makes it all the more necessary to fight fiercely for individuals who preserved — in darker days — their reputation for independence.

The second reason relates to the background of the reference. Last year, for the first time in its 46-year history, the SJC removed a judge for misconduct. Not for corruption or incompetence, but for accusing the ISI of manipulating judicial proceedings. Interestingly, while the SJC held it misconduct for a judge to air such allegations publicly, it refused to investigate the truth of the allegations (despite specific officers, and specific meetings, having been detailed).

Read: Justice Shaukat Siddiqui removed as Islamabad High Court judge

Many consider Justice Isa’s real sin to be of similar nature. In his Faizabad dharna judgement, the armed forces and intelligence agencies were directed to investigate whether their officers violated their oath by meddling in politics, inter alia, by doling out cash to protesters. In the aftermath of the judgement, he was charged by PTI and its allies of breaching the Code of Conduct for Judges. In other quarters, he was even accused of promoting RAW’s narrative!

In that backdrop, when the government selectively leaks contents of a supposedly confidential reference against him that is accompanied by a simultaneous and orchestrated anti-Justice Isa campaign on print, electronic and social media — it is not unreasonable to ascribe malice.

The third reason is the frivolity of the reference itself. The charge, we are told, is that Justice Isa did not declare — in his wealth statement filed before taxation authorities — the foreign properties in name of his wife and (adult) children. Under the law, was he bound to make such declaration?

Government spokesmen wrongly compare the case to parliamentarians disqualified for not declaring the assets in the name of family members. Election laws specifically mandate that parliamentarians must declare their spouse/s and children’s assets in addition to their own. The Income Tax Ordinance does not.

Section 116 of the Ordinance governs filing of wealth statements. It has two parts. The second part binds all resident taxpayers to file a wealth statement listing their own assets and liabilities. The first part, however, states that if the Tax Commissioner sends a notice to the tax-payer in this regard, the tax payer must list his spouse, minor children and other dependents’ assets in addition to his own. Apparently, no such notice was sent to Justice Isa. If so, he did not need to declare them.

The government contends, nonetheless, that the properties listed in Justice Isa’s wife’s and children’s names should be presumed to belong to him. The law, however, deems the opposite. The legal presumption is that the apparent state of affairs is real unless the contrary is proved. The burden of proving the apparent owner was not the real owner rests upon the person making the allegation (i.e. the tax authorities). Unlike NAB law, there is no reversal of proof here.

As such, the President could only file the reference if he had tangible material before him to justifiably conclude the properties held by Justice Isa’s wife and children were benami and actually owned by Justice Isa. Given the conspicuous lack of any ‘leaks’ in this regard, it seems reasonable to conclude that there was not. Without such material, his very act of filing the reference was defective and without jurisdiction.

The only question, then, is whether Justice Isa’s wife and children were duty-bound to declare such properties? That depends on various factual aspects — including their citizenship, residence and sources of income — that still remain unknown. But even if they had to declare the properties and did not, at best, that might expose them to proceedings under the Income Tax Ordinance. It could not justify SJC proceedings against Justice Isa.

Accordingly, those proceedings should be immediately struck out.

The writer is a former president of the Karachi Bar Association

Published in Dawn, June 9th, 2019