ghazi52
PDF THINK TANK: ANALYST
- Joined
- Mar 21, 2007
- Messages
- 103,045
- Reaction score
- 106
- Country
- Location
SC issues detailed judgement in Justice Isa case
Court says no one including judges above accountability if tried in accordance with lawHasnaat Malik
January 29, 2022
Supreme Court Judge Justice Qazi Faez Isa.
ISLAMABAD: The Supreme Court on Saturday issued a detailed judgement in the case pertaining to review petitions filed by Justice Qazi Faez Isa in the apex court against the verdict on presidential reference against him and observed that now judge must obviate any attempt to damage the judiciary.
"Unfortunately our chequered history has seen numerous attempts to trample upon judicial independence during both, civilian as well as military governments. Nonetheless, we must not become prisoner of our past and must now obviate any attempt to damage the judiciary," the apex court observed.
By a majority of 6:4, the apex court accepted the review petitions of Justice Isa and others against the June 19, 2020 order wherein FBR was directed to conduct an inquiry in the matter related to the foreign properties of SC judge family members.
The 45-page judgement was authored by Justice Maqbool Baqir, Justice Mazhar Alam, Justice Aminuddin and Justice Sajjad Ali Shah and an additional note was penned by Justice Yahya Afridi.
“This judgment must announce loud and clear that no one, including a Judge of the highest court in the land, is above the law. At the same time, no one, including a Judge of the highest court in the land, can be denied his right to be dealt with in accordance with law,” the judges remarked at the start of the verdict.
"History is witness to the fact that the fundamental rights, particularly of those who are the most vulnerable, becomes the first causality in societies where the judiciary comprises those who were compromised and thus susceptible to being influenced by those wielding power and influence. The edifice of judicial independence rests on the assumption that every Judge besides being fair and impartial is fiercely independent and is free to uphold his judicial views."
"This judicial freedom is fundamental to the concept of the rule of law. Any attempt to muffle judicial independence or to stifle dissent shakes the foundation of a free and impartial judicial system, thus eroding public confidence on which the entire edifice of judicature stands. Public confidence is the most precious asset of this organ of the state, which controls neither the sword nor the purse. A judge whose decisions are dictated not by the fidelity to the letter and spirit of the law but based on what he deems to be palatable to the Government would cause irretrievable damage to the public confidence in the judiciary, and consequently jeopardize its credibility and moral authority. Judges should not be, in the words of Lord Denning, “diverted from their duty by any extraneous influence, nor by hope of reward nor by fear of penalties, nor by flattering praise, nor by indignant approach," further stated the judgement.
Tax matters of Sarina Isa
In a comment on the SC ruling that asked the tax commissioner to probe Sarina Isa’s assets, the judges remarked that the children and wife of Justice Isa were private citizens and the court acted beyond its jurisdiction by issuing such an order.
“The tax matter of the petitioner, Mrs. Isa, could not have been referred to the Council as the role and jurisdiction of the Council is limited to the matters relating to the conduct and capability of the superior Court Judges.”
“The impugned directions also create an anomalous situation... If in the event the Council, on the basis of the report submitted by the Chairman FBR…recommends removal of Justice Isa, but subsequently Mrs Isa, succeeds in her challenge to the order of the Tax Commissioner, and the said order is found not sustainable, the time for the retrieval may have passed as by then Justice Isa may have reached the age of superannuation... In a reverse scenario where the Council may not agree with the findings of the Tax Commissioner, but such findings are upheld by the forums, including this Court, before which the Tax Commissioner’s findings are amenable to correction, an anomalous and embarrassing situation may occur.”
The ruling said Justice Isa couldn’t be held responsible for the deeds of his spouse or children. “Needless to remind the salutary principle of law that everybody is responsible for his own deeds or misdeeds, acts and omissions, and nobody incurs any liability on account of any wrong committed by any other person.”
Independence of SJC
It further said that suo motu powers used to dictate the forum infringed the independence of the Supreme Judicial Council.
“…only the President of Pakistan…can direct the Council to inquire into the matter of alleged misconduct or incapacity of Judges of the constitutional courts, and the proceedings before the Council cannot be called in question in any court including this Court as provided in Article 211 of the Constitution except when the Council acts with mala fide (in fact or in law), without jurisdiction or coram non judice.”
The judgement added that there was no complaint against the council so there “was no occasion for this Court to direct the Chairman, Council to place the report of the Chairman, FBR regarding the decision of the Tax Commissioner in the tax matter of Mrs Isa and ask the Council to even conduct “proceedings” to decide whether or not it will inquire into the matter of alleged misconduct against Justice Isa in the exercise of its suo motu powers”.
“Therefore, asking the Council, by the impugned directions, to conduct “proceedings” to decide whether or not it will inquire into the matter of alleged misconduct by Justice Isa in exercise of its suo motu powers is also tantamount to interference into the independent functioning of the Council and, thus, against the spirit of the provisions of Articles 209 and 211 of the Constitution,” the judgement stated.
It further said the impugned directions “authorized the Chairman, FBR to do that which he cannot do under the Constitution and the law”.
“He being an officer subordinate to the Federal Government cannot make any complaint against a constitutional court Judge directly to the Council; only the Federal Government can do so and that too by the constitutional process of acting through the President,” it added.
Principle of natural justice
According to the judgement, the impugned directions “are found to have been made by this Court without adhering to the principle of natural justice, fair trial and due process...”.
Though the directives made by the Supreme Court were in good faith, the court “on its own, without putting to the parties on notice, without informing them what the Court was contemplating to do and without inviting and hearing their arguments on the matters dealt with therein, the above-noted legal and constitutional aspects of the impugned directions with their ramifications were not present in the mind of the Court while making the impugned directions”.
“If the Court had heard the arguments on the matters dealt with in the impugned directions and the legal position relating thereto had been debated and appropriately placed before it, the Court would not have made the said directions as the Court never intends to act contrary to law,” the judges wrote.
It further said, “We believe that the rule of law and the independence of judiciary are conceptually interwoven: without an independent judiciary, expecting the rule of law is a sheer farce.”
Justice Yahya in his note said the court didn’t have jurisdiction to issue the directives to the SJC to consider “initiating, or otherwise, an inquiry against the Petitioner Judge based on the “information” received from the tax officials of the FBR”.
“Before concluding, I think it is proper to make clear that the present order, by no means, seeks to curtail the lawful authority of the President, the Council and the tax officials…the tax officials, however, should in no way detract them from their statutory duty to remain steadfast in ensuring the confidentiality of the information of a tax filer as mandated under section 216 of the Ordinance which, as noted in the judgment under review, was blatantly breached in the case of Mrs. Sarina Faez Isa: the tax officials on the unlawful directions issued by the Chairman ARU, Barrister Shahzad Akbar with the concurrence of the Federal Law Minister, Dr. Farogh Naseem, breached the statutory confidentiality of Mrs Sarina Faez Isa’s tax returns.”
“I feel constrained to observe that allowing the said delinquents to continue in such important positions of authority by the worthy Prime Minister, and that too after this Court has unanimously declared their actions to be in violation of the Constitution and law, particularly the provisions of section 216 of the Ordinance entailing penal consequences, belies the most elementary principles of “good governance”, and expose the worthy Prime Minister’s complicity in the commission of the said violations,” the judge wrote.
