• Ex-PM blames law ministry
• Farogh claims case sent on Imran’s insistence
• Fawad says he had opposed the idea while in cabinet

ISLAMABAD: While terming it a ‘mistake’, former premier Imran Khan on Monday blamed the law ministry in the PTI government responsible for sending the reference against Justice Qazi Faez Isa before the Supreme Judicial Council.

However, former law minister Farogh Naseem brushed aside the blame stating that the reference was moved only on ex-PM Khan’s insistence. Interestingly, former information minister Fawad Chaudhry took to the social media to claim that he had objected to the filing of the reference and Barrister Naseem should have admitted that it was his doing.

The admission of ‘mistake’ by the PTI chairman after a two-year hiatus is being seen as his attempt to ‘mend ties’ with the judiciary, as Mr Khan while talking to a group of reporters acknowledged that the filing of the reference was an “attempt to unnecessarily confront the judiciary”.

The observation becomes significant when viewed against the backdrop of what had been written by a member of the 10-judge Supreme Court bench that decided a set of petitions on the filing of the presidential reference against Justice Isa. In his additional note, Justice Faisal Arab wrote that 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. The very commencement of the inquiry proceedings against a judge causes psychological pain and anguish that continues until his name gets finally cleared and the agony may even continue for some time thereafter, Justice Arab stated.

A senior counsel requesting anonymity believed Mr Khan was trying to “win back the support” of Justice Isa at a time when the former could no longer “damage the judge” after being voted out of power. The lawyer said Mr Khan clearly knew Justice Isa was destined to become Chief Justice of Pakistan in September 2023 after the retirement of the incumbent chief justice.

As long as Mr Khan remained in power, he pursued the case against Justice Isa vigorously, rather made considered attempt to drag not only the judge but his wife Sarina Isa into the controversy, the counsel said, regretting that the ex-premier was in the habit of shrugging off responsibility of such moves to other shoulders. “This is not one-off,” he regretted, adding that Mirza Shahzad Akbar was asked to head the Asset Recovery Unit though the only credentials he had was his claim that he would collect evidence of corruption against Nawaz Sharif.

Mr Khan had plenty of opportunities to express his regrets, if he had any, when the reference was quashed by the 10-judge bench, when the majority judgment through its June 19, 2020 short order referred the matter to the Federal Board of Revenue (FBR), which functions directly under the federal government, for further probe into the matter. That was the time when Mr Khan could have stated that the government did not want to keep chasing the judge rather the apex court should appoint a monitoring judge if the SC wanted to pursue it further.

Even when the reference was finally quashed in the second round i.e. the review petition by Justice Isa, the government coined a novel idea by instituting a curative review, which was still pending before the Supreme Court, he said, adding that former Attorney General Khalid Jawed Khan finally put a lid on it by openly stating he was not interested in following the matter anymore.

Fawad blames Farogh

The latest admission by Mr Khan took another twist when Fawad Chaudhry in a tweet regretted that Farogh Naseem, being the former law minister, should have accepted the responsibility of sending the reference since it was his doing.

Mr Chaudhry then claimed that being the cabinet minister he had opposed the filing of the reference against judges and asked that bar associations should move it, but it was on the insistence of Mr Naseem that the reference was sent to the SJC.

When contacted, Mr Naseem said it was the ex-premier’s insistence to move the summary/reference considering the material that became available with the ARU that Mr Khan himself had set up and worked directly under him.

He rubbished the idea that the judiciary was against Mr Khan. Summaries like the one pertaining to Justice Isa were “very sensitive”, he noted, adding they could never have been moved and no work thereon could be performed, unless and until they were “cleared in advance by the prime minister and the president”.

He claimed he had never borne any personal grudge against Justice Isa. About Mr Chaudhry’s claim, he said reference never went through cabinet. “Let Fawad Chuadhry show any minutes of the cabinet meeting where he said [opposed the reference] all this,” Mr Naseem said, adding that minutes of cabinet meetings were properly maintained.

In his detailed judgement, the incumbent chief justice had explained President Dr Arif Alvi did not form a considered opinion under Article 209(5) of the Constitution and therefore the presidential reference against Justice Isa suffered with multiple defects. “And since there was no valid authorisation for the investigation, the government illegally accessed the tax records of Justice Isa,” the verdict said.

It was further noted that there was no authorisation for investigating the affairs of Justice Isa by the president and prime minister instead the authorisation of law minister was obtained.

In his dissenting note on the short order, former Justice Maqbool Baqar held that Mr Khan, Mr Naseem, and Mr Akbar were liable under the Income Tax Ordinance (ITO) 2001 as well the Nadra Ordinance for “ordering in haste institution of a reference against Justice Isa”.

In addition, the PM [Imran Khan] was also liable for sending the purported advice to the president Arif Alvi for the filing of reference against Justice Isa which in the facts and circumstances infected with malice, Justice Baqar regretted.

Published in Dawn, April 19th, 2022