ISLAMABAD: Justice Faisal Arab observed on Friday that by referring the question of three undeclared London properties to the Federal Board of Revenue, the Supreme Court left it to the Supreme Judicial Council (SJC) to consider if the FBR report had sufficient information for embarking upon an inquiry under Article 209(5) of the Constitution.

Justice Arab, a member of the 10-judge bench that decided a set of petitions on the filing of the presidential reference against Justice Qazi Faez Isa, observed in his additional note that after holding that the reference was not maintainable in law, wrapping up these proceedings without adopting the course provided in the June 19 short order would not have resulted in genuine exoneration for the judge.

Justice Arab observed that Justice Isa commanded great respect in the legal fraternity, but questions had been raised over his financial credibility and, therefore, it became all the more necessary that he and his wife, who lived with him as a member of his household, should take this as an opportunity to scrub away the taint.

By referring question of London properties to FBR, court left it to SJC to make final decision, judge observes in his additional note

Proving the allegation wrong by making a full disclosure about the source of money used for acquisition of the London properties, located beyond the tax jurisdiction of Pakistan, would be the only appropriate response to refute the allegations and clear the doubts that might have arisen in the minds of the public, Justice Arab observed

For any reason, if Article 209 (5) of the Constitution was made ineffective through judicial interference, it would die in the hearts and minds of the people for whom it was framed, Justice Arab observed.

He highlighted that the framers of Pakistan’s constitution believed that the process of accountability of judges of superior judiciary be better left in the hands of an independent body of judges, instead of parliament, to prevent any political pressure on them.

Thus the institution of SJC was created under Article 209(5) of the Constitution for the superior judiciary from the judiciary and the mechanism provided for judicial accountability in essence was indirectly holding oneself accountable in the eyes of the public, Justice Arab observed.

It was compatible with the principle of judicial independence, both individual independence of the judges and independence of the institution as a whole, and ensured public trust in the judiciary, he noted.

By virtue of Article 209 (7), read with Article 211 of the Constitution, the role of scrutinising the merits of the allegations made against a judge of the superior judiciary and rendering findings thereon was to be exclusively performed by the SJC only, Justice Arab observed, adding that no court could assume such a role.

The SJC should not to be treated as a forum that was dead in its duty to examine the merits of allegations made against any judge of the superior judiciary, Justice Arab observed, adding that every judge, without any distinction, deserved the honour, dignity and respect which went with his office.

When the integrity of a judge of the superior judiciary was called in question under Article 209 (5) of the Constitution, then not only his credibility but of the entire judicial institution was put at stake, Justice Arab stated. The very commencement of inquiry proceedings against a judge caused psychological pain and anguish that continued until his name finally got cleared and the agony might even continue for some time thereafter, he observed.

“Nonetheless, the sanctity of the mechanism provided for overseeing the conduct of judges of the superior judiciary has to be respected as nothing makes the judges of the superior judiciary immune from the process of accountability,” he observed.

Justice Arab noted that allegations of misconduct had been made against notable justices of superior judiciary around the world. Some got impeached and others were cleared.

Every judge of the superior judiciary (in Pakistan) had to demonstrate due deference to the SJC that had been entrusted with the constitutional responsibility to make inquiries into their conduct, Justice Arab observed, adding that this was to be done to assure that judges were performing their role as guardians of the Constitution.

When facts became public about an asset located in the country or abroad, in the name of a judge of the superior judiciary or any member of his household, which was acquired while he was in office and had not been declared to the income tax authorities, then the satisfying sense of finality to the whole episode would always be missing unless the matter was brought to its closure, Justice Arab said.

Published in Dawn, October 24th, 2020