Govt once removed over surveillance, recalls SC judge

Updated 12 Jun 2020

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Govt lawyer asked how evidence against Justice Isa was collected without surveillance. — SC website
Govt lawyer asked how evidence against Justice Isa was collected without surveillance. — SC website

ISLAMABAD: A Supreme Court judge on Thursday told the federal government’s counsel to remember that a democratically elected government was sent packing on charges of surveillance of judges in 1996.

“Please keep in mind that one of the democratically elected governments was sent packing on the charges of surveillance of judges,” observed Justice Maqbool Baqar, a member of the 10-judge Supreme Court bench that had taken up a set of challenges to the filing of the presidential reference against Justice Qazi Faez Isa.

One of the allegations by the petitioner’s side before the apex court is that the material against Justice Isa was collected through illegal means, including covert surveillance.

Legal observers believe that Justice Baqar had pointed towards the impact of the legal consequence the judge had been referring to during earlier proceedings for the wrong decision to file the reference.

Govt lawyer asked how evidence against Justice Isa was collected without surveillance

At the fag end of Thursday’s proceedings, Justice Umar Ata Bandial, who is heading the 10-judge bench, also asked Barrister Dr Farogh Nasim, who is representing the federal government, to remember that he was dealing with a Supreme Court judge who had constitutional guarantees under Article 209 of the Constitution.

Pakistan’s jurisprudence so developed since 1960 suggested that any action tainted with malice was always considered as done without any jurisdiction, Justice Bandial observed, adding that here the malice was the most important factor since malice always led to actions that had been taken with ulterior motives.

Justice Bandial also asked Dr Nasim to satisfy the court how the evidence against Justice Isa for the filing of the reference was collected without any surveillance.

Pivotal question

At the outset of the hearing, Dr Nasim argued that the pivotal question in the case was whether or not Justice Isa had any legal obligation to provide justification for declaring money trail for the purchase of three offshore properties by his wife irrespective of the question whether she was dependent or independent, though the petitioner’s side was arguing that the wife was not dependent of Justice Isa and, therefore, not obliged to declare or reconcile the source for acquiring the properties.

Citing the Code of Conduct for the Judges, Article 209 of the Constitution and Supreme Judicial Council Procedure of Inquiry 2005, the counsel argued that the proceedings against the judge were only maintainable for committing misconduct because proceedings before the SJC essentially were disciplinary proceedings and not tax proceedings.

Since the term ‘misconduct’ for judges had not been defined in Article 209 of the Constitution, the lawyer argued, then a 1962 judgement authored by Justice Alvin Robert Cornelius meant that violation of any law would entail misconduct.

To infer whether the judge had committed misconduct or not should be left to the SJC to interpret, he said, adding that misconduct depended on the context of duties and responsibilities.

Dr Nasim then quoted the SJC procedure of inquiry to establish that no exhaustive explanation of misconduct had been given in the procedure.

‘Bad guy’

When the lawyer insisted that the high principle of conduct was expected of the superior court judge, Justice Baqar observed that the counsel was contending that the judge should not be a bad guy.

“Yes, these are the pointers,” the counsel said, adding that the prime duty of a judge was to always keep the image of justice before the people.

Citing Indian Supreme Court’s judgements, the counsel contended that it had been held that the office of the judge was a public trust, but in Pakistan “we have gone even further by holding in the light of the Islamic jurisprudence that the office of the judge is a sacred trust”.

The role or status of the judge was much higher and worthy of a nation, the counsel contended, emphasising that the code of conduct for judges suggested that judges should be blameless, untouched by greed and free from improper behaviour both in their official and private dealings.

The lawyer also cited a number of statutes, including interpretation from international jurisdiction, to establish that whenever misconduct would be referred under Article 209 of the Constitution, certain parallels would have to be drawn from other statutes as well.

At this, Justice Muneeb Akhtar wondered how this principle would apply in the present case when the Constitution was unique and sui generis that created a class alone since it had no equivalent. “How can we interpret the constitutional meaning of the misconduct from other statutes?” Justice Akhtar asked.

The counsel, however, argued that the Constitution did not make any distinction between a dependent or independent wife, saying no law went into this distinction in view of close proximity bet­ween the husband and the wife. He also cited the Amnesty Scheme of 2018 under which no judge and even his wife, whether dependent or independent, qualified to take benefit from the scheme because of close proximity between them.

Similarly, the Holder of Public Office Act 2019 included the spouses and other dependents, the counsel argued.

But Justice Baqar wondered whether the office of the judge of the Supreme Court fell within the ambit of this law.

However, the counsel contended that Section 20 (2)(1)(d) treated the chief justice and the superior court judges as holder of public office.

Justice Baqar observed that no one had ever asked the spouse or children of the judge as to how they acquired these properties, adding that if the arguments of the counsel were accepted then it would mean that anybody could raise questions about the assets of judges.

To establish that the wife was dependent of the judge was still a fundamental question in the matter, Justice Baqar observed, wondering whether the Asset Recovery Unit could ask the FBR for an inquiry.

Legal obligation

The counsel replied that they were talking about legal obligation of the judge before the SJC. Citing the Panama Papers case in which former prime minister Nawaz Sharif was asked to justify the source of his London flats, he asked why the judge should not be asked about three expensive properties in London which were not even mortgaged.

Justice Baqar observed that no parallel could be drawn between the two cases.

Justice Bandial asked Dr Nasim to define the meaning of close proximity and why the judge should be asked about it when his wife could independently buy properties.

The counsel cited examples from money laundering regulations and the law dealing with politically exposed persons to establish that the SBP regulations suggested that wife also fell within the definition of politically exp­osed persons since it did not have any distinctions bet­ween wife and other dependents.

Published in Dawn, June 12th, 2020