ISLAMABAD: Justice Syed Mansoor Ali Shah fears that unlawful procurement of information about three London properties through unlawful surveillance of Justice Qazi Faez Isa and his family is deeply worrying and shakes the foundation of a democratic society based on rule of law.

The issue of unlawful surveillance and invasion of privacy of the petitioner judge and his family is far more critical and grave than the information procured by the Assets Recovery Unit (ARU), Justice Shah regrets in his 65-page dissenting note on Justice Isa’s petition challenging the presidential reference against him, which was issued on Wednesday.

It is a naked threat to personal liberty, privacy and dignity guaranteed to the citizens under the constitution, Justice Shah fears while highlighting the gravity of the constitutional violation committed by the ARU or its chairman Mirza Shahzad Akbar.

Justice Mansoor of SC holds PM, law minister responsible for undue haste in processing reference

To trivialise the right to privacy by saying that the judge has nothing to hide is no different than saying you don’t care about free speech because you have nothing to say, Justice Shah observes. The mode and manner of procurement of information regarding the three UK properties cannot be lightly dismissed as “in it lays the destiny of our people and the future course of our country”, he says.

The ARU is not equipped to carry out surveillance or interception without assistance of the intelligence agencies, for which it was authorised in the terms of reference by the cabinet without any lawful authority, Justice Shah explains.

It is underlined that intelligence agencies were aggrieved of the Faizabad sit-in judgement as it carried adverse observations regarding their role and activity. That is why review petitions were filed by the Ministry of Defence on behalf of the intelligence agencies, Justice Shah observes.

Further, it is evident from the June 26, 2019 report of the ARU’s legal expert that he hired a tracing agent firm to trace the residents of the London properties over the years, and not to trace the addresses of the properties, Justice Shah notes.

He explains that every infraction does not lead to removal of a constitutional court judge or constitutes impeachable misconduct. Rather the best test is to see if judicial integrity of a judge has been undermined resulting in lowering the public confidence and trust in the judiciary, thus impairing impartiality and legitimacy of the judicial institution, the dissenting note says.

Justice Shah leaves it to the chief justice to decide about initiating appropriate proceedings for a thorough inquiry so that the right to fair trial of the persons involved in publicising the reference and the allegations made therein might not be infringed. This will also protect the prestige, honour, reputation and integrity of the judiciary, he says.

Justice Shah also observes that Law Minister Dr Farogh Naseem and Prime Minister Imran Khan were responsible for undue haste in processing the reference by the ARU chairman and its legal experts and the officials of the FBR, FIA and Nadra, and since the buck stops with the prime minister in a constitutional parliamentary democracy, the major burden of these malicious actions fall on his shoulders, who also happens to be the leader of a political party that filed the review petition against the Faizabad sit-in judgement with an astonishingly unique prayer seeking ouster of the petitioner judge for expressing an independent view.

“In our constitutional democracy, it is essential that everyone enjoys his or her domain of freedom, free from governmental intrusion – lest it aims to check an unlawful activity,” Justice Shah says, adding that privacy, liberty, autonomy and agency are integral parts of dignity and life and are cherished constitutional values that determine the frontiers of a living constitutional democracy.

Referring to the directions to the Federal Board of Revenue in the Supreme Court short order to furnish its report to the Supreme Judicial Council about its assessment of the London properties, Justice Shah observes that such proceedings, after the reference against Justice Isa was quashed, would mean that the SJC must now consider if a judge can be made vicariously liable for misconduct for his family’s affairs, a concept that is alien to the Code of Conduct for judges and has nothing to do with judicial integrity as discussed above.

According to Justice Shah, the Supreme Court cannot direct anyone to file a complaint against a constitutional court judge before the SJC and then make the council consider that complaint. This would have a far reaching effect as it would dismantle independence and neutrality of the council and the constitutional scheme under Article 209 of the Constitution that safeguards a constitutional court judge.

There can be no compromise on either judicial independence or judicial accountability. These are essential pillars, which together uphold public confidence and legitimacy of the judicial institution. The real and enduring strength of the judiciary is anchored in ruling according to the constitution and the law without fear or favour, irrespective of public perception and irrespective of who is before the court, an ordinary litigant or a judge of the highest constitutional court of the land, Justice Shah says.

Published in Dawn, November 5th, 2020