ON Thursday, the Supreme Court cautioned the
federal government against the consequences if
the federal government failed to prove its case against Justice Qazi Faez Isa. A 10-member bench of the apex court, led by Justice Umar Ata Bandial, raised serious questions over working of Assets Recovery Units (ARU) and the federal government has yet to satisfy the court on the matter. The Supreme Court bench asked the government counsel Barrister Farogh Naseem a few questions, such as “a violation of trivial requirements of the tax law may not necessarily be misconduct in terms of Article 209. The government should show some law, whether in income tax or otherwise, that imposes upon a judge the legal duty to disclose his wife & children’s assets even if they are not dependent. Or which makes a judge responsible to show a money trail for their assets due to some kind of doctrine of sufficient connection”.
“But this doctrine or obligation must be established in some law and can’t just be assumed. Even if assumed that the presidential reference had some defects in its procedure, wasn’t it still open for the SJC to say that well we don’t accept the reference and we file it but the material that has been brought forward is still serious enough to justify an independent suo motu enquiry of our own”? Some analysts consider these questions as an indication of the 10-member Supreme Court Bench’s bent of mind, which is not correct. It is quite normal that the court asks questions in order to determine whether the case had been filed according to the law, and that there were no mala fide intentions. However, the Constitution encompasses rights, duties and responsibilities of all organs of the state and all of them are supposed to go by the ‘book’.
Whether judiciary subjects judges to accountability; or military with the in-built system of accountability holds its personnel accountable, the fact remains that no one is above the law in Pakistan. Today, the Supreme Court asked questions from Farogh Naseem, who represents the government, but in October 2019, the Supreme Judicial Council (SJC) had rejected the allegations leveled against it by Supreme Court Justice Qazi Faez Isa pertaining to a presidential reference filed against him. Of course, Justice Qazi Faez Isa has the right to defend himself using all the available forums to him. Anyhow, Justice Isa had accused the SJC of being partial with regard to the presidential reference against him. The Supreme Court had sought a response from the Council on Justice Isa’s allegations. The SJC submitted its detailed response in the Supreme Court pertaining to the proceedings of a reference filed against Justice Isa.
“To inquire into the conduct of a judge upon a reference filed by the president is an inviolable constitutional obligation of the Supreme Judicial Council, in view of provisions of Article 5 of the constitution, read with the oath of office sworn by the chairman and members of the council and the code of conduct prescribed for the judges of the superior judiciary,” the SJC stated in its response. In Pakistan, there is restriction on even discussing in parliament the conduct of any justice of the High Courts and the Supreme Court. Until 1976, defendants charged with contempt of court had to submit an unconditional apology before they could even commence their defence. In the past, there have been some controversial verdicts by the court. The Lahore High Court verdict against late Zulfiqar Ali Bhutto and his appeal rejected by the Supreme Court had been criticized by former CJ Naseem Hassan Shah.
Anyhow, the Apex Court has also given some landmark judgments such as in Asghar Khan’s case that will go down in the annals of history to be quoted as reference in future cases. Supreme Judicial Council had also in its verdict removed Justice Shaukat Siddiqui of the Islamabad High Court under Article 209 of the Constitution, which showed that judiciary was independent and unbiased. There is a perception that even before his fateful speech against a national institution, there were numerous allegations against him to justify his removal from the bench under Article 209 of the Constitution. In a letter to the Director General of the BBC written in 1955, the High Lord Chancellor of Great Britain had said: “But the overriding consideration is the importance of keeping the Judiciary in this country insulated from the controversies of the day. So long as a Judge keeps silent, his reputation for wisdom and impartiality remains unassailable”.
—The writer is freelance columnist, based in Finland.