"We are all in the gutter, but some of us are looking at the stars” — Oscar Wilde

THE illegal and mala fide presidential reference against Justice Faez Isa has been quashed by the Supreme Court (SC). Surely, we should celebrate this victory. No, we are told, because this is actually an illusionary or pyrrhic victory as the persecution of Justice Faez Isa still continues through the Federal Board of Revenue (FBR), no action has been taken against the president and prime minister for this illegal and mala fide reference and the Assets Recovery Unit has not been held accountable for its illegal actions.

This kind of thinking is very dangerous because it engages in legal illusions and turns a victory for judicial independence and constitutionalism into an illusionary defeat. It is an illusion to think that Justice Faez Isa’s case was a simple case for the Supreme Court to just show courage in protecting a good judge versus the evil state. Actually, this case involved three formidable challenges.

Firstly, how does one protect judges from persecution without compromising on accountability, i.e. the independence versus accountability challenge. Secondly, how does one hold the state accountable for its illegal and mala fide actions against judges without provoking an inter-institutional crisis, i.e. the executive accountability versus inter-institutional crisis challenge. Thirdly, how does one provide justice to the persecuted judge without compromising the autonomy and effectiveness of the Supreme Judicial Council (SJC), an institution headed by the Chief Justice of Pakistan and other senior-most judges, i.e. the Supreme Court versus the Supreme Judicial Council challenge.

Only a short order

In this age of instant information, people forget that it is the standard practice of the courts to issue short orders and later on issue detailed reasoning. It is precisely for this reason that the Justice Faez Isa Supreme Court Order begins with the critical words: “For detailed reasons to be recorded later and subject to any orders made or directions given therein (if any)…”. This means that not only many tens of pages of detailed reasons explaining the meaning and basis of this short order but also further orders or directives (if any) are still to be issued by the Supreme Court in this case.

These detailed reasons or further orders/directives may contain the answers to the above criticisms, i.e. why the Supreme Court referred the matter to FBR? Whether the president and prime minister or their legal advisers or any other state institution have been held accountable? Whether the actions of the Asset Recovery Unit regarding judges are legal? Therefore, let us be patient and wait for the detailed reasons or other orders before engaging in such premature and misguided doomsday scenarios.

The apex court’s order

Ten judges of the SC have unanimously quashed the presidential reference against Justice Faez Isa of the same court without a trial, which means that this reference was so utterly illegal that it doesn’t even deserve a trial. Not even the Nazi Germany’s Goebbels, let alone this incompetent government, can rationalise the total and devastating defeat of the federal government in the Justice Faez Isa case. Like Chief Justice Iftikhar Chaudhry’s case, once again the SC has proved itself to be the protector of judicial independence against a very powerful executive.

Out of the ten SC judges, a majority of seven judges have issued directives regarding the future role of the FBR and SJC to decide the competing claims of Justice Faez Isa’s family and the government regarding the nature and source of funds used for acquiring the three foreign properties. Firstly, the concerned commissioner of Inland Revenue will decide this issue within 75 days and within seven days of the issuance of the commissioner’s order, chairman of the FBR shall submit a report to SJC regarding the commissioner’s proceedings. Therefore, in order to bring closure to this important issue, time frames have been assigned and in order to ensure legality and fairness, officers of the FBR have been made directly answerable to the SJC on this issue.

Secondly, in order to ensure due process to the family of Justice Faez Isa, the commissioner will only issue the order after notice to and personal hearing of the family and it is especially clarified that if the family is aggrieved by the commissioner order, it will have its right of independent appeals, i.e. one each to the tribunal, then high court and finally the SC itself. Therefore, the independent appellate forums of the judiciary itself will protect the family from any illegality and unfairness of the commissioner order. Thirdly, it is completely in the hands of the SJC to decide what to do with the FBR report of the commissioner proceedings without any government interference. For example, the SJC may decide that no proceedings can be initiated against the judge merely on the basis of income tax violations by his family or until all appellate forums are exhausted against the commissioner order. Therefore, it is wrong to assume that a disaster will necessarily follow upon the submission of FBR report to the SJC.

The majority order has tried to address the above-mentioned three challenges. Firstly, it has safeguarded the independence of the judge but permitted accountability with stringent safeguards. Secondly, it has exercised jurisdiction over the SJC without compromising the role of SJC as the primary body of judicial accountability. Thirdly, it has refrained from saying anything about mala fides of the executive without first giving detailed reasons to avoid speculations about an inter-institutional crisis, especially considering the fact that this order has given a devastating blow to the federal government by quashing the reference.

Of course, out of ten judges, three have taken a different position and have refused to issue any further directives to the FBR or SJC for such accountability but reasons have yet to be issued for this view.

With overwhelming support of the lawyers’ community and the general public, Justice Faez Isa has already won the war, with only a few battles remaining. So, let us celebrate, resist and not despair.

The writer is a lawyer

Published in Dawn, June 22nd, 2020