ISLAMABAD: Justice Umar Ata Bandial of the Supreme Court asked the counsel for Justice Qazi Faez Isa on Tuesday to refrain from using the judicial forum for discussing politics, saying the judiciary would deal with the remarks of Prime Minister Imran Khan in accordance with the law.
“Let’s not use this rostrum to discuss politics; no one is perfect and there is always room for improvement,” Justice Bandial observed.
The observation came when Advocate Babar Sattar, representing Justice Isa of the Supreme Court, recalled Monday’s speech by the prime minister in which he had asked Chief Justice Asif Saeed Khosa and future CJP Gulzar Ahmed to come forward and restore the confidence of people in the judiciary.
“Yesterday the prime minister was unhappy and took pot shorts at everyone,” the counsel said before concluding his arguments.
Senior lawyer Munir A. Malik will resume his arguments when a SC full court hearing a set of challenges to the filing of a presidential reference against Justice Isa meets again on Wednesday.
SC judge says judiciary will deal with PM’s remarks in accordance with law
Justice Bandial recalled how a district judge brought embarrassment to the entire judiciary and asked the counsel not to discuss the prime minister and his wife in the court.
The counsel argued that he was mentioning them because they had discussed his client and his spouse in the reference when there was no breach of any law by the petitioner judge.
The basis of existence of the judiciary was the trust it enjoyed among the people, Justice Bandial observed. “Our duties are fiduciary (trustee) and we must demonstrate that trust. It is a good thing that the people have expectations from us, especially when someone amongst ourselves comes to us,” he said.
Advocate Sattar, however, emphasised that his client was being asked to prove the negative when his judicial conduct was not in question. Moreover, he said, the reference had not established that funds went from the petitioner judge to his wife for acquiring the offshore assets.
“I am under instructions to inform the court that my client is not seeking any immunity or protection of the Supreme Judicial Council (SJC) and wishes that he should be strictly made accountable in accordance with the law as he is open and has no intention of enjoying different standards of liabilities attached to judges,” he said.
But Justice Bandial explained that the judiciary, as well as every judge, enjoyed the protection of Article 209 (SJC). In fact this is a privilege that every complaint should go before the SJC, which is a vital institution.
“You mean that the petitioner judge does not want to seek special treatment,” Justice Maqbool Baqar inquired.
The counsel replied that there was no allegation of splitting of income since the judge had an exemplary tax record and was a partner of a law firm, Messrs Rizvi and Isa. There is also no allegation that Justice Isa had no means to acquire the properties since he was a commercial lawyer.
Justice Bandial, however, conceded that a fundamental element in the reference was that there was no allegation of corruption against Justice Isa. The federal government’s rejoinder did not add up the value of the properties and, therefore, they had assumed that the money must have gone from the judge to his wife since the husband was so well off, he observed, adding that when there was an assumption, it needed to be inquired.
The counsel said the tax authorities never made assumptions, arguing that the property in question was in control of petitioner judge’s daughter who was benefiting from it since it was in her possession and she was the one renting it out.
The court was informed that the daughter held a Spanish passport when Justice Yahya Afridi inquired about the origin of the passport.
The counsel cited the 2017 Panama Papers case to remind that Chief Justice Khosa had held Maryam Nawaz as not dependent on her father Nawaz Sharif. He contended that no law, except the Representation of People Act, required an individual to disclose the properties of the spouse.
Justice Faisal Arab wondered whether the concealment of assets would fall within the purview of Articles 62 and 63 of the Constitution, under which legislators were disqualified for life. Since concealment of assets was a reality in “our society”, there should be an explanation.
The counsel said no tax authority or other forum had ever asked the spouse about the properties she owned or ever issued any tax notice.
“Do you know how many complaints the SJC receives in comparison to the number of proceedings it initiates?” Justice Bandial asked and recalled how he discovered a complaint even against him and a similar one against other judges.
“This shows that the SJC is not a rubber stamp and always applies its mind by taking the matter very seriously,” Justice Bandial observed, adding that the SJC had always demonstrated good faith and trust.
“Why you are so averse to facing the proceedings before a domestic forum which functions under the constitutional framework?” Justice Bandial asked.
The counsel replied: “The real question is whether the president enjoys the power to let a witch-hunt of judges and a vicious campaign in the media against him and his life. We are concerned that the executive should not be allowed to level allegations in a reference and put the entire family of a judge in the dock.
‘‘If the elevation to the Supreme Court of a judge is a fresh and separate appointment for which even the qualifications are different, then how the misconduct of a judge during his last job can become a reason for ouster from the present job.”
Published in Dawn, November 20th, 2019