ISLAMABAD: Rubbishing criticism against the accountability process, Chief Justice of Pakistan (CJP) Umar Ata Bandial has said judges may have been protected from the ordinary processes of law, but they are not subject to a separate or lower legal standards of accountability compared to other public servants.

“Indeed it is of vital importance that public office holders, particularly judges of the superior courts, serving the people of Pakistan remain answerable before their relevant forums to safeguard the integrity and credibility of their person as well as of their court,” observed Justice Bandial in a minority judgement he wrote while deciding a set of review petitions also instituted by Justice Qazi Faez Isa.

The judgement was endorsed by Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Mohammad Amin Ahmed, who were members of the 10-judge Supreme Court bench that decided Justice Isa’s review petition.

With additional notes by Justice Munib Akhtar, the minority judgement observed that if aspersions cast against judges on the basis of admitted facts were not dispelled, the moral authority of courts would be eroded and the execution of their primary function — to decide the people’s rights and obligations in accordance with the constitution and the law — become severely undermined.

Minority judgement authored by Justice Bandial finds order to FBR in Isa case factually and legally well-founded

The verdict explained judges of superior courts were accountable for unexplained assets of their spouses and family members, with the only difference that the judge was answerable before the specialised forum, Supreme Judicial Council (SJC), created under Article 209 of the Constitution specifically for determining complaints of misconduct received against judges.

In the present case, CJP Bandial stated, it was admitted that the three London properties belong to Mrs Sarina Isa, the wife of Justice Isa, and their children. Two of the properties, namely 40 Oakdale Road and 90 Adelaide Road, were purchased in 2013 when Justice Isa was holding the public office of Balochistan High Court chief justice while the properties were ‘undeclared in the wealth statements’ of Mrs Isa and her husband.

Since the non-disclosure of the London properties caused suspicion and trepidation, the judgement said in such circumstances a question to the petitioner judge about the source of funding of those properties was natural, relevant and lawful, notwithstanding any procedural lapses committed in the preparation of the presidential reference against Justice Isa.

Such question must not be bypassed, because being in the service of Pakistan, the petitioner judge was answerable for the unaccounted assets of his spouse, the minority judgement reiterated.

The CJP in his verdict observed no satisfactory reasoning was put forward by any review petitioner on why no standards of accountability or separate or lower ones should apply to judges and why the SJC should wait for a final determination by the relevant statutory authorities before processing information received against the judge on this score.

The obligation on judges to be transparent in their conduct was also exemplified in the Code of Conduct for Judges of the Supreme Court and High Court (CoC) issued by the SJC under Article 209(8) of the Constitution that called upon the superior court judges ‘to present before the public an image of justice of the nation’, the judgement said.

For this reason, the judge must possess “the highest qualities of intellect and character” and “keep his conduct in all things, official and private, free from impropriety”.

The CJP in his judgement explained that the earlier direction to the FBR to commence proceedings against Mrs Isa did not adversely affect either her reputation or her property and that the due process requirements of Article 10A of the Constitution were fulfilled after hearing Mrs Isa by the tax authorities when the apex court in the April 26, 2019 judgement had decided to refer Mrs Isa to the competent forum, the FBR, to explain the nature and source of the funds utilised for buying the London properties. Thus, by following this process, the essential ingredients of the right to be heard, namely, prior notice of the subject-matter and opportunity of hearing were complied with.

Also, Justice Bandial clarified that while the SJC only had jurisdiction to examine the conduct inquiry against judges, it could secure the attendance of any relevant person or the discovery/ production of any document while conducting an inquiry against a judge. In exercise of this power, the SJC may yet examine persons who are not judges or their record for understanding or deciding pending information.

About the arguments that direction to the FBR to proceed against Mrs Isa and her children amounted to person-specific legislation, the minority judgement explained that the matter was referred to the FBR, because it was the relevant and competent fact-finding authority for verification so that the controversy surrounding the petitioner judge and the court could be put to rest.

In these circumstances, the judicial direction issued to the FBR under Articles 184(3) and 187 of the Constitution was factually and legally well-founded, the minority judgement stated.

Published in Dawn, February 6th, 2022