ISLAMABAD: The code of conduct for judges portrays a picture showing that judges live in a glass house, observed Justice Umar Ata Bandial, a member of the 10-judge Supreme Court full court hearing challenges to the filing of a presidential reference against Justice Qazi Faez Isa of the apex court.

“But this glass house should be bulletproof,” replied senior counsel Rasheed A. Razvi, who is representing the Sindh High Court Bar Association and the Pakistan Federal Union of Journalists, the petitioners, during the hearing of the case on Tuesday.

“Therefore, the conduct of judges should be above board and open to public scrutiny,” Justice Bandial asked, wondering whether the counsel was calling for complete immunity for judges.

“What you are emphasising is that the protection available to judges under Article 209 of the Constitution should be effective,” the judge asked the counsel and urged him to elucidate what were the red lines they could not cross.

Mr Razvi argued that every provision of the Constitution provided protection to judges.

Justice Bandial says conduct of judges should be above board and open to public scrutiny

Justice Syed Mansoor Ali Shah, another member of the bench, observed that judges should be accountable, but whatever be done to make them accountable should be strictly in accordance with the law. “Any short-circuiting in this regard is not permissible,” he said.

The counsel argued that the entire summary or proceedings for the filing of the reference against Justice Isa was conducted by the Ministry of Law, wondering what provision of law empowered the ministry to do so.

At this, Justice Bandial observed that the rules of business determined the functions of the federal government.

The counsel argued that the process of removing judges was the most cumbersome in neighbouring India, but on the contrary it was the easiest in Pakistan.

At this Justice Bandial wondered whether the counsel was criticising the Constitution which determines the process of removing a judge.

He said the 1973 Constitution represents certain consensus and the mechanism provided by the Constitution should be applied at all cost. “Let’s not go into criticising the Constitution,” he further said.

The counsel alleged that the presidential reference against Justice Isa was the outcome of personal grudges only to settle scores. He claimed that Justice Isa and Law Minister Farogh Naseem had a long rift over the May 12, 2007, massacre in Karachi as the latter belonged to the party which was blamed for the incident.

He said the current mayor of Karachi, Waseem Akhtar, who also belonged to Mr Naseem’s party, had admitted that Karachi’s Shahrea Faisal was blocked on his instructions on May 12, 2007, which reportedly led to a gun battle between armed groups.

Mr Razvi said that he himself saw high court judges were climbing the walls of the Sindh High Court’s building on that fateful day. “My heart bled when I witnessed all this.”

When Justice Bandial asked the counsel what had happened on Nov 3, 2007, when former president Pervez Musharraf imposed a state of emergency in the country, the counsel retorted promptly that the same what had happened with the people of Karachi on May 12.

Gathering of information

Later, Advocate Salman Akram Raja, appearing on behalf of the Pakistan Bar Council (PBC), listed nine formulations. He said that the so-called gathering of information by the Asset Recovery Unit (ARU) prior to its placement before the president was without lawful executive authority. No doctrine of inherent or residuary executive authority or Rule 4(5) of the Rules of Business, 1973 can provide the basis for the invasive authority exercised by the ARU, he said, adding this had violated protections available to Justice Isa and his family.

Obtaining information in the stage prior to its placement before the president, the counsel argued, could only have been through recourse to the normal flow of information under different statutes like Nadra laws or property registration laws.

The illegal exercise of so-called executive authority by the ARU without basis in any statute continued even after the placement of information before the president since the gathering of information at this stage could only be with the sanction of the president and by duly constituted bodies, he said.

The opinion by the president for the purposes of Article 209 is to be formed on the basis of lawfully collected information, the counsel emphasised, saying that the opinion envisaged by Article 209(5) was to be formed by the president independently without being bound by the advice of the prime minister or the cabinet in terms of Article 48 of the Constitution.

According to him, such independence is inherent in the very idea and the conception of an opinion. He said the dictated opinion was no opinion since the president was not a mere rubber stamp. Also, the referral to the SJC is not an executive function in terms of Article 97 read with the Fourth Schedule to the Constitution, the counsel reminded.

The opinion of the president should also ensure protection of the due process rights of the judge and his family, the counsel argued.

These due process rights can only be protected if the petitioner judge and his family are subjected, like any other citizens, to the procedures and processes of the applicable law, including the Income Tax Ordinance, 2001, he said.

The alleged non-compliance of Section 116 can only attract notice and further action under the Income tax law. Patently wrong reading of Section 116(1) has been made by the president, the counsel said, adding in this case no notice to this day had been issued under Section 116(1) or any other provision of the income tax law to the family of the judge or the judge himself.

He said the SJC could not function as the first tier of income tax administration because such action would violate not only initial due process, but also deny the multiple rights of appeal under the law.

In the alternative, even if the opinion in terms of Article 209(5) is to be formed by the prime minister and the cabinet, the opinion must satisfy the requirements of honouring due process for it to be considered reasonable.

The judicial review of the opinion formed by the president lies in the jurisdiction of this court and not the SJC, he said, adding it was the right of the petitioner judge to seek such review. The SJC is not a court rather a fact finding forum and thus a unique body that carries the highest stature, he said.

Published in Dawn, January 29th, 2020