• Detailed judgement observes any attempt to malign judges undermines public trust in judiciary
• Minister terms the verdict ‘contradictory’; says violation of basic rights can be challenged
• Minority verdict by Justice Bandial, three others awaited

ISLAMABAD: The Sup­reme Court in a detailed jud­gement issued on Satur­day observed that its June 19, 2020 direction to the tax authorities to investigate allegations against Sarina Isa, the wife of Justice Qazi Faez Isa, of not declaring three foreign properties in her name and her children and submit its findings to the Supreme Judicial Council (JDC) violated the principle of natural justice.

Detailed reasons of the April 26, 2021 short order were jointly authored by Justice Maqbool Baqar, Jus­tice Manzoor Ahmad Malik (retired), Justice Mazhar Alam Khan Miankhel, Jus­tice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Amin-ud-Din Khan.

They were members of the 10-judge bench that overturned its June 19, 2020 majority order in Justice Isa case. The much-awaited judgement explained that these directions definitely fell within the scope of the well-established ground of review namely “error apparent on the face of the record” and thus could be recalled in exercise of the court’s review jurisdiction under Article 188 of the Constitution.

The SC, by a majority of six to four, had overturned its June 19 majority order, rendering the exercise conducted by the Federal Board of Revenue (FBR) null and void as the fresh order set aside the verdict that authorized the FBR to evaluate and later impose tax liability against Mrs Isa for possessing three properties in the UK.

The minority verdict by Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Mohammad Amin Ahmed is still awaited.

In a loud and clear manner, the detailed verdict observed that no one, including a judge of the country’s highest court, was above the law, but no one, including a judge, could be denied his right to be dealt with in accordance with law.

Every citizen, it said, notwithstanding his status or position, was 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.

It observed that judicial accountability was the cornerstone of judicial independence, but it did not mean that accountability of the judge was bereft of due process of law and fair trial.

An open court-house is no less than a glass house, yet the judges boldly and courageously upheld the law even against the mightiest in the land, without fear and favour, in full public gaze, the verdict explained.

According to the detailed verdict, since judges have no public platform to clarify, respond or defend themselves, any attempt to malign judges undermine public trust and public confidence in the judicial institution. It explained that since the basic order was without lawful authority, the entire superstructure built on it fell to the ground.

Thus, any proceedings taken, orders passed or actions made in pursuance of these directions lost their legal status, the judgment said, while emphasising that the apex court strongly believed that judicial independence and accountability were two sides of the same coin. “To compromise on judicial accountability is to compromise on independence of judiciary – but our only concern in the present matter is that a constitutional court judge in the matter of his accountability, his spouse, must be dealt with in accordance with the law,” the judgement said.

According to the detailed order, injustice anywhere is a threat to justice everywhere, whatever affects one directly, affects all indirectly, so would the accountability of one judge in a manner not provided by the Constitution impact upon the independence of all judges and thus destroy the independence of the judiciary as an institution.

The judgement explained that Justice Isa because of his unblemished character and honest performance of duties both at the Bar and on the Bench during the 40 years of his life enjoys great respect in the legal fraternity.

Members of almost all the bar associations across the country hold Justice Isa as an honest, independent and impartial judge, with impeccable integrity, it observed, while referring to the Supreme Court Bar Association, Pakistan Bar Council, all the four provincial bar councils and high court bar associations of Quetta, Sindh and Peshawar as well as senior lawyers including Abid Hassan Minto who had earlier challenged the SC directions and the filing of a presidential reference against Justice Isa. “All of them are the main stakeholders in the judicial system and are best suited to form and express their opinion about the integrity and ability of the judge.”

Read more: Who is Justice Qazi Faez Isa?

Also, the judgement mentioned, Pakistan Federal Union of Journalists was a petitioner representing those who have their fingers on the pulse of the nation.

“We are fully conscious of the fact that it is the impeccable integrity and high standard of ethics and transparency that engenders public confidence in the judiciary. It is in order to achieve and maintain the public confidence, trust and perception about the independence, impartiality and integrity of the superior court judges that our constitution has provided an elaborate scheme, for the accountability of judges under Article 209, which needs to be adhered to strictly.”

The judgement regretted unfortunately the chequered history had seen numerous attempts to trample upon judicial independence during both, civilian as well as military governments.

Judicial freedom was fundamental to the concept of the rule of law and any attempt to muffle judicial independence or to stifle dissent shook the foundation of a free and impartial judicial system, thus eroding public confidence on which the entire edifice of judicature stood, the verdict noted.

According to the judgement, a judge whose decisions are dictated not by the fidelity to the letter and spirit of the law but based on what he deems to be palatable to the government would cause irretrievable damage to the public confidence in the judiciary, and consequently jeopardize its credibility and moral authority.

Law minister’s comment

Commenting on the detailed judgement, Federal Minister for Law and Justice Barrister Farogh Naseem in a Geo News talk show said the underline debate and original decision in Justice Isa case was about ‘unexplained sources of income’.

While terming it a ‘contradictory judgement’, the minister argued that it would be called ‘double standards’ if judges and their families would not be inquired. With this decision, those holding public offices were under stress and jeopardy regarding accountability process. They [judgements] are precedents for the nation, he added.

Hinting at the possibility to challenge the decision, the minister said: “Legal option is available” since the judgement was “against the fundamental rights of citizens”. He explained that if new piece of information was laid before the Supreme Court, the matter could be taken up even after a decision on a review petition. In India, this is called ‘curative review’ whereas in Pakistan there are five or six judgements, including the one by Justice Baqar, when new information was provided to plead that the decision on review petition was against the fundamental rights of citizens.

Referring to a court observation in Justice Isa case, the minister said the time bar applied to tax, and not to accountability process.

He also mentioned that an application had earlier been filed before the SC to take up the matter of accountability of judges on its own.

Published in Dawn, January 30th, 2022