The honourable Supreme Court has passed its short-order in the Justice Qazi Faez Isa’s case. And in the aftermath, a new debate concerning the ambit of judicial accountability, and its interaction with executive authority, has erupted across Pakistan. In order to better understand the issues involved, let us first take a deeper look at the order of the honourable Court.
The facts concerning Justice Isa’s case, relating to his wife’s properties in London, are all too familiar by now, and need no regurgitation. Suffice it to say that the government had filed a reference against Justice Isa, claiming that he was guilty of misconduct, under Article 209 of the Constitution, for failing to disclose properties in the name of Justice Isa’s family members (in particular his wife); Justice Isa challenged this reference on the grounds that he cannot be held accountable for his (non-dependent) wife’s properties, acquired through independent financial means. And that, in any case, this is a tax issue at best, and does not amount to ‘misconduct’, as envisioned in Article 209 of the Constitution. Most importantly, Justice Isa claimed that information against him had been collected through illegal means, and the reference had been framed on the basis of mala fide and malice, since he had irked certain ‘powerful quarters’ through a series of past judgments. The government, on the other hand, insisted that judicial accountability necessitates that Justice Isa account for his assets, and those of his immediate family members. And that the Supreme Judicial Council (SJC) has the jurisdiction to inquire into the matter.
Read more: Justice Qazi Faez Isa reference: Supreme Court in a fix?
Through its short order, a 10-member bench of the honourable Court unanimously held that the pending reference against Justice Isa “is declared to be of no legal effect whatsoever and stands quashed” and “proceedings pending” before the SJC “including the show-cause notice” stand abated. This, however, is the only point on which members of the bench were unanimous. Thereafter, a majority of seven judges (excluding Justice Maqbool Baqar, Justice Mansoor Ali Shah, and Justice Yahya Afridi) directed that, since the issue at hand relates to tax (mis)declaration, the “Commissioner of Inland Revenue” shall “within 7 days” issue appropriate notices “to the spouse and children” of Justice Isa, under the Income Tax Ordinance, 2001 (ITO), requiring them “to offer an explanation” concerning the “source of the funds” for their properties.
Per para 6 of the order requires Justice Isa’s family members to “furnish their replies” along with “such material and record as is deemed appropriate”. Even if some of them are out of country, they shall file their responses in time, and no “adjournment or delay for the reason of non- availability in Pakistan of such person” shall be granted. Upon receipt of such information, the Commissioner shall provide “an opportunity of hearing” to the parties, and shall thereafter “make an order” in accordance with the relevant provisions of the ITO. In terms of timeline, para 8 of the order mandates that proceedings before the Commissioner shall be completed “within 60 days of the date of receipt of the notices” and order shall be issued “within 75 days of the said date of receipt”.
The three dissenting judges, for reasons to be recorded in detail later, allowed Justice Isa’s petition, thereby quashing the reference “alongwith the Show Cause Notice issued by Supreme Judicial Council” against Justice Isa
Importantly, para 9 of the order directs that “within 7 days of the issuance of the order” by the Commissioner, the Chairman FBR “shall submit a report (to be personally signed by him)” to the Secretary of SJC, along with “entire record of the said proceedings”. The Secretary shall immediately place such report before the Chairman of SJC (the Chief Justice of Pakistan), who shall “have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine.” Pertinently, per the order of the honourable Court, “receipt of the report”, “laying of it before the Council” and any “action/proceedings” or “orders or directions” passed thereon, shall be deemed to be “in exercise of the suo moto jurisdiction” of the SJC, under Article 209(5) of the Constitution.
Furthermore, para 10 of the order stipulates if “within 100 days” no report (from FBR) is received by the Secretary of SJC, he shall inform the CJP accordingly, and “if so directed by him”, require “an explanation as to why the report has not been received”. In response, if a report is filed by the FBR, the abovementioned process (of para 9) will take hold. Even if no report is filed, the CJP may still direct that the matter be placed before the SJC for “such perusal, consideration, action, order or proceedings”, as the SJC may determine, in exercise of suo moto powers under Article 209(5). And “without prejudice to the foregoing, if at any stage the report is received from the Chairman, FBR” then the matter will proceed in the manner described earlier (in para 9 of the order).
Read more: FBR humiliated my wife, Justice Faez Isa tells SC
Lastly, para 11 of the order clarifies that Justice Isa’s family may file appropriate appeals, permitted by law, against any of the proceedings before FBR. However, the SJC proceedings “shall not be affected by the filing or pendency of any appeal”.
The three dissenting judges, for reasons to be recorded in detail later, allowed Justice Isa’s petition, thereby quashing the reference “alongwith the Show Cause Notice issued by Supreme Judicial Council” against Justice Isa.
Let us parse through this order, so as to make better sense of it.
The honourable Court, in the instant case, was faced with a debilitating conundrum: on the one hand, the reference against Justice Isa suffered from prima facia defects and thus needed to be struck down; on the other, the Court was also acutely aware of the necessity to protect its public image as an institution that welcomes accountability of its members. Caught between this rock and a hard place, the order of the Court attempts to strike a balance.
Such observations may find space in the detailed judgment; however, the “directions” of the Court (already included in the short order) will likely remain the same
Pursuant to Friday’s order, the SJC will necessarily take cognisance of the matter concerning foreign properties of Justice Isa and his family. Except that, Justice Isa can no longer raise his primary defence of ‘mala fide’ and procedural defects anymore – since the proceedings before the SJC will now be conducted in exercise of ‘suo moto’ powers (per Article 209(5) of the Constitution), which eliminates all procedural infirmities of the reference.
Also, over the course of the next two months, the government of Pakistan (through the FBR) will conduct a detailed audit of Justice Isa’s family properties, and have the opportunity to collect/present such additional information that was not available on the record earlier. This includes information that dates back beyond 5 years (a statutory period, which prohibits FBR from looking into older financial records). All of this will then be reviewed by the SJC, for possible ‘actions, proceedings, orders and directions’ as members of the SJC may deem appropriate. In essence, Justice Isa, after two months, maybe facing a much stronger reference than the one filed by the government earlier.
Even if no new (implicating) information comes forth during the FBR proceedings, the SJC will still review the existing information provided by the government, and may choose to proceed under Article 209 of the Constitution (as it did when the earlier Show Cause was issued to Justice Isa).
Read more: Justice is restoring order not furthering chaos
Separately, the ‘direction’ part of the honourable Supreme Court’s (majority) order includes no observations on malice or mala fide. It also has no comment on the legality and ambit of the Asset Recovery Unit. Such observations may find space in the detailed judgment; however, the “directions” of the Court (already included in the short order) will likely remain the same.
The coming months present an unprecedented challenge for the honourable Supreme Court, for the SJC, and for Justice Isa in particular. Let us pray that, when the dust settles, ‘justice’ and ‘confidence’ in our judicial system, survives the impending challenges.
Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. This article originally appeared in The Nation and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.