The AG controversy

February 29, 2020

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The writer is a lawyer.
The writer is a lawyer.

WHEN a judge of Pakistan’s superior courts is considered mentally or physically incapable of performing the duties of office, or may be guilty of misconduct, his removal can be sought from the Supreme Judicial Council (SJC).

There are two routes regarding this: one is by way of a standard complaint, the other is by way of a presidential reference sent to the council. In the latter case, the council is bound to conduct a hearing and ask for the judge to show cause, as it is presumed the president (and by implication the federal government) applied their mind to the information received and considered it worthy of inquiry.

A presidential reference alleging misconduct upon the person of Justice Isa was sent to the SJC, as investigated and determined by the government’s Assets Recovery Unit (ARU), processed by the law ministry. The nature of the alleged misconduct pertained to a failure to disclose certain assets: properties allegedly belonging to the judge in the name of his spouse and children. It was alleged that Justice Isa’s not declaring these properties was a violation of the requirement to state the assets held by an individual or his immediate dependants in his wealth statement.

Justice Isa replied to the reference on its merits, but also filed a constitutional petition against the SJC’s entertaining it. The petition argued that the reference was motivated by malicious intent, the allegations were not previously put to the owners of the properties by the taxation authorities and that the purported information collected regarding the allegedly undeclared assets has been gathered through illegal surveillance. Hence, the process of removal was triggered in bad faith, and must not proceed.

Some of the important things the previous AG did in the government’s service were by accident.

He argued that he was mandated only to declare the wealth of his dependants if any, and that his wife and children were not dependent on him and had their independent sources of income. He said the only way these properties could be identified was through illegal surveillance of his person.

Across detailed hearings, it has been alleged that the reference was maliciously motivated due to friction between the judge and certain powerful institutions, abetted by some cabinet members. It has been alleged that the references arise from a need to silence him and retribution for his daring to task state functionaries to stay within their constitutional mandates.

It is also argued that the reference is premature, ie the first step taken should have been a notice sent by the tax commissioner to Justice Isa’s spouse and children to answer for the discrepancy alleged. Only on substantiation through such a process could a claim of misconduct be lodged.

Comments from the bench, as reported in media, have been varied. Some questions have focused on whether such allegations of malice, even if merited, should allow for a process before the SJC to be quashed. Some honourable members are reported to have commented during proceedings that such action would weaken an already tenuous remedy for misconduct by judges, and that if the charges are fabricated, the same can be proved before the SJC. Others are reported to have commented more on the lack of due process regarding the tax allegations and the absence of any structured authority of the ARU.

Court reporters have argued amongst themselves of a divided bench in this regard. This supposed division, in some senior lawyers’ opinion, lasted until last week, when it was the government’s turn to reply.

The now former attorney general Anwar Mansoor Khan played what he thought was his trump card. Perhaps to deepen the difference of opinion, he made an allegation involving the bench itself in a manner the media was told not to report. The order asked for him to provide evidence, or to apologise. Bar councils demanded contempt proceedings against him, and his removal. The AG then apologised unconditionally to the Supreme Court. When the pressure did not abate, he submitted his resignation. The law ministry, perhaps to distance itself, made clear he did not resign, but was removed for acting without instruction when making such allegations.

The AG responded by saying he acted upon “information received from relevant quarters and when one receives information, they ought not to sit on it”. He further rejected the government’s allegation that he had acted on his own by saying everyone knew what statements he would make, going further in a TV programme and saying he was even appreciated for making them.

The AG’s position can be condensed in the following example:

‘I cooked a soup, because I believe when you have the ingredients, you must cook. Everyone helped stir the soup. Also, I am sorry for cooking this soup, I have never even thought of cooking. Also, brothers I stand with you in your outrage against this soup. It is abhorrent.’

It is perhaps fitting for this government that some of the most important things the attorney general did in its service were by accident:

In the Army Act case, he assured the Supreme Court of corrective legislation whilst conceding that the law was flawed. The court relied upon this assurance to save the army chief extension notification. The federal government in review now claims he lacked the power to give such assurances.

The other accident came about through his double response to the court and the media. He had spearheaded what the bar councils were calling a hunt of an independent judiciary through state machinations with no clear sanction of the law. When the odds shifted, he attempted to run with the bar councils protesting our loss of freedoms, reaching out to brother members of the bar as the state’s latest victim.

What of his claim of acting upon “information he received from relevant quarters”? It concerned the independence of other Supreme Court judges, alleging certain conduct which is not publicly known. How was this supposed information acquired? Regardless of its accuracy, didn’t the AG just admit to Justice Isa’s allegation of illegal surveillance?

He has left a gaping hole in the government’s attempt at pretending that the Justice Isa reference is about above-board transparency and all being equal before the law. With two brilliantly obtuse statements, he has disabused this process of the illusion of justice. His legacy depends upon whether you believe he actually did it all on purpose.

The writer is a lawyer.

Twitter: @jaferii

Published in Dawn, February 29th, 2020