On Monday, the SC accepted all review petitions challenging the court’s judgment in the presidential reference against Justice Qazi Faez Isa, except the one that the judge himself had filed. The 10-member bench heard the review petitions filed against the SC’s June 19, 2020, judgment on the presidential reference. While quashing the presidential reference, the Supreme Court had empowered the Federal Board of Revenue (FBR) to conduct an inquiry into offshore assets of Justice Isa’s wife. Now the SC has stated that the directions and reasons that the majority judgment had given are no more valid.
It is believed that the campaign against Justice Isa started on 6th Feb 2019 after he authored a strongly worded ruling in a case relating to the Nov 2017 Faizabad sit-in by the recently banned Tehreek-i-Labbaik Pakistan (TLP), directing the chiefs of the army, navy, air force and the defence ministry to penalize the personnel under their command found to have violated their oath.In August 2016, a powerful explosion had occurred in Quetta which several prominent lawyers killed. Justice Isa, who headed one commission to investigate the blast, in his report passed severe strictures against the Interior Ministry and the ISI for not taking action against terror organizations openly operating in Pakistan. Later, the Supreme Judicial Council had issued a notice to the federal government through the attorney general regarding references filed against Isa and Justice Karim Khan Agha of the Sindh High Court. The Supreme Judicial Council in the references accused the two judges of obscuring their assets and suggested action against them under Article 209 of the Constitution.
This case had become a high-profile matter not just because it was the result of a presidential reference, but since the judge under review and investigation himself pleaded his case rather than relying on his lawyer. The fact that the top court accepted the review petition by a majority of 6-4 does not make it a unanimous decision but the way the arguments proceeded in the court had multiple lessons for the drafters of the presidential reference as well as for the legal community in the country. First, the court has declared all actions that the FBR took against Justice Isa’s wife and children illegal.
The verdict also serves as an object lesson for those who tried to pervert the law and the concept of accountability to malign and excise from the bench a judge unafraid to call them out for their excesses. One need only glance through the Faizabad sit-in judgement to understand the genesis of the presidential reference. For the government, clearly willing to go any distance required to stay on ‘one page’ — even to the extent of risking a schism within the highest court in the land — the denouement is an unalloyed debacle, leaving behind a stain it will find difficult to wash away. This was not a matter about one individual, but about silencing an institution that performs as a check and balance on the exercise of power.
There has been much talk about the selective way in which accountability has been carried out in Pakistan recently. Those who believe in the supremacy of the constitution and independence of the judiciary considered this case as a litmus test for how a judge can himself appear in the court and defend himself. What happens now is to be seen. We do hope though that in the future judges are permitted to deliver verdicts as per their conscience and their legal interpretation of the evidence presented to them.The judgment would be disturbing for important players who like Henry II, King of England, are not likely to take it lying down. The likelihood of further attempts to get rid of the meddlesome judge cannot be ruled out.