Across the board justice | By Prof Dr Muhammad Khan


Across the board justice

FINALLY, the Supreme Judicial Council (SJC) headed by the Chief Justice of Pakistan, Justice Gulzar Ahmed has decided “not to proceed further against Justice Qazi Faez Isa”.

This decision was taken after the verdict of 10-judges of Supreme Court on 26 April 2021.

The 10-member full court, headed by Justice Umar Ata Bandial was hearing the cases against Justice Qazi Faez Isa in presidential reference filed against him for not disclosing his foreign properties in his wealth returns.

The 10 member’s court set aside the court’s earlier directive to the Federal Board of Revenue (FBR) to conduct an inquiry into three UK properties in the name of Ms Sarina Isa, wife of Justice Qazi Faez Isa.

With such a high level panel of the judges of Supreme Court, there should not have been controversies towards the start of the hearings in June 2020.

On June 19, 2020, through a majority order of the court, verification and subsequent findings were sought from FBR authorities against the three foreign properties of Sarina Isa.

With a split mandate, the earlier order of the court was quashed on 26 April 2021, which did not auger well for the superior judiciary of Pakistan.

The verdict declared the entire exercise of FBR as null and void. It created bad image for the superior judiciary of Pakistan.

Besides, during the proceedings of the case, there have been some bad omens in the form of remarks of the respected judges.

The difference of opinion among the judges over the evidence(s) is natural but, making these differences public, really tarnishes the image of the superior judiciary.

After the verdict, there started a controversial debate all across the Pakistani society, the legal fraternity, media and even academic circles over the trial of Justice Qazi Faez Isa.

Some of the debates are inclined that, Justice Isa was favoured by the Supreme Court judges whereas others feel that he was un-necessarily dragged into a trial which legally does not belong to him directly.

Irrespective of verdict, let’s debate the provisions of international law and the Constitution of Pakistan about justice system.

International law is sum total of all internationally agreed treaties, covenants and set of norms and rules.

The sources of international law include international custom, treaties, and general principles of law recognized by most national legal systems.

The Universal Declaration of Human Rights, adopted by United Nations in 1948, articulates fundamental rights and freedoms for all.

As per Article 7 of the Universal Declaration of Human Rights (UDHR), “All are equal before the law and are entitled without any discrimination to equal protection of the law.”

This is the historic statement for the provision of justice to everyone and anyone, irrespective of class, colour, creed and place origin.

Indeed, this article is extracted from the Last Address of the Holy Prophet (PBUH), which says, “All humans are equal to each other” and there is no superiority based abovementioned factors.

Based on Islamic ideology, the Constitution of Pakistan-1973 has incorporated the relevant and essential articles of the UDHR.

Intentionally or otherwise, the ‘right to fair trial’ was missed in the articles of constitution.

This is despite the essence of the constitution stress upon the promotion of and respect for the human rights. Later, Article 10-A was inserted in the Constitution of Pakistan through 18th Amendment in 2010.

As per this new insertion (Article 10-A, “Right to fair trial: For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

Prior to 2010, this ambiguity existed in the constitution could have been exploited by affluent classes.

However in the post 2010 environment, right to fair trial has ended the ambiguity and made it as the fundamental constitutional right for all citizen of Pakistan, irrespective of the class or category.

It has uniform coverage; extended to criminal charges, the civil rights and all other cases and obligations.

In the light of abovementioned prerequisites of a fair trial as provided by Article 10-A, two sitting prime ministers of Pakistan were tried and de-seated from their incumbent positions with some additional penalties and punishments.

Former Prime Minister, Youssef Raza Gillani and Mian Muhammad Nawaz Sharif were provided with fair trial in the contempt of court case and the Panama case respectively.

The Supreme Court added that through Article 10-A, the right had been “raised to a higher pedestal”.

Elaborating on the principle that ‘justice should not only be done but be seen to be done’ the Supreme Court held that a judge may not adjudicate upon any case in which he has a personal interest, regardless of whether his decision is likely to be influenced by it.

Contrary to the removal and penalties to two sitting Prime Ministers, the former Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry was given preferential treatment in the charges against him and his son.

Arsalan Iftikhar, Son of former Chief Justice Chaudhry had extracted the payments in return for favourable treatment in a slew of court cases related to Property Empire of Malik Riaz.

Over the past few years, there have been some verdicts of the superior judiciary which invited criticism over the justice system of Pakistan.

In order to avoid such misgivings in future, the elements of a fair trial should be essential characteristics of the court, which have been said to include: the reality and appearance of the court’s independence and its fairness.

Away from obscurities, the superior court must demonstrate its competence, independence and impartiality.

— The writer is Professor of Politics and IR at International Islamic University, Islamabad.