ISLAMABAD: In a clarion call, the Supreme Court on Friday rubbished the impression being created that judges are not accountable but explained that such an exercise should be done in accordance with laws through proper machinery and forum.

“There is a need to clarify since unfortunately an impression is being created as if judges are not accountable,” Justice Maqbool Baqar observed, saying no one was stopping anybody to conduct the accountability of judges.

“We are a little more accountable than ordinary persons and on behalf of my brother judges I declare that we are very much amenable to accountability and not above the law,” he said, but emphasised that the process of accountability should be done in accordance with law.

While pointing towards counsel for the federal government Dr Farogh Nasim, Justice Baqar highlighted the need to demonstrate before the 10-judge full court infractions on part of the petitioner judge (Justice Qazi Faez Isa) so that he could be amenable to the scrutiny by the Supreme Judicial Council (SJC).

PBC vows to strongly oppose presidential reference against Justice Isa

The government could not hold two simultaneous and parallel proceedings — one under the tax regime and another through SJC — especially when there was a perception that the reference smacked or tainted with mala fides and initiated without jurisdiction, Justice Baqar remarked.

About the impression being created regarding the accountability of judges, Dr Nasim clarified that the impression, if any, was not from the government’s side and that no one was saying the judges were not accountable since many judges had set high traditions.

On Friday, the counsel focused his arguments on the relationship of husband and wife, arguing that the judge’s failure to give a money trail of the accounts of his wife amounted to misconduct. In order to establish his point, Dr Nasim referred to the Holy Quran’s verse about fasting and intimacy between husbands and wives and also referred to an interpretation by the Federal Shariat Court in 2015 in this regard.

“This should apply to everybody and not only to judges,” Justice Syed Mansoor Ali Shah observed.

Dr Nasim then contended that fundamentally the reference against Justice Isa was not about Section 116 of the Income Tax Ordinance (ITO), though it was just a point in the reference and therefore what relevant was to read the show cause notice issued by the SJC to the petitioner judge.

At this, Justice Sajjad Ali Shah intervened by reminding the counsel that the “context of what you cited from the Holy Quran” was “totally different”.

Justice Qazi Amin Ahmed also reminded the counsel that the Holy Book was referring to the biological relationship between the husband and wife and that the counsel was pushing the Supreme Court to a very dangerous area.

The counsel, however, retorted that the code of conduct for the judges was based on high principles of the sacred trust and the proximity rule created a class of its own since the office of the judge was like a public servant because the judge and his wife were politically exposed persons. He said the tax proceedings as well as the disciplinary proceedings before the SJC were entirely exclusive.

While referring to the 2015 FSC judgement and Article from the Qanoon-i-Shahadat, Dr Nasim emphasised that the marriage contract between husband and wife was a long commitment to protect the life, honour and property of each other from any harm. “This argument supports the petitioner judge,” Justice Shah reminded the counsel.

Justice Umar Ata Bandial, who is leading the full court, also reminded the counsel that he should inform the court what argument he was building upon and emphasised that verses from the holy Quran be read with due respect. “The garment theory of the counsel would not be applicable here,” Justice Bandial added.

Justice Qazi Amin asked the counsel whether the concept he was proposing also applied to non-Muslims.

At this, the counsel cited the example from the Hindu religion where the wives used to “Sati” (self-immolation at the incremation of husbands).

Why the government was shy from asking the wife of the judge about the source of the three offshore properties and then wait for the response she made, Justice Baqar observed, emphasizing that the fundamental point in the case was that every single action of the government should be founded under the law but the abstract concept the counsel was introducing would not be of much help to him.

Justice Shah also wondered whether the wife of the petitioner judge was a tax assessee under the ITO and if someone was assessee then how he could be called a dependent.

Till date no money trail regarding the properties had been given, the counsel argued, before Justice Baqar reminded him that the question of money trail would emerge only when the judge agreed that the source of those properties emanated from him.

“How many wives, no matter how educated they are, know about the financial dealings of their husbands,” Justice Baqar wondered, while explaining that in many cases they were not even aware of the second marriage of their husbands.

Dr Nasim then cited the example of the chief justice of Gibralter who had to go when proceedings initiated against him after his wife – a solicitor by profession – wrote a letter to the bar in 2009 saying the relationship between husband and wife brought the chief justice into the ambit of the proceedings.

Justice Shah said this citation would apply in case the husband hid any wrongdoings of his wife, but in the present case, the counsel had to establish if a wife did something wrong.

“We do not know the facts of the case the counsel was citing,” Justice Baqar remarked, saying Dr Nasim was an outstanding counsel of high calibre and the bench expected assistance of that level from him.

The counsel further argued that an Indian judge had to resign, because he failed to justify the properties of his wife in 2011. But in that case, Justice Shah recalled, it was established that he was the benamidar and beneficiary of the property.

PBC resolve

Meanwhile, Pakistan Bar Council vice chairman and newly elected chairman of PBC Executive Committee Azam Nazeer Tarar expressed the bar’s resolve to strongly oppose the presidential reference filed against Justice Isa and to fully support and defend his petition before the Supreme Court for protecting the greater cause of the independence of the judiciary and the rule of law.

In a statement, they also assured that the legal fraternity would never disappoint the people of Pakistan and would not hesitate in rendering any sacrifice, to protect the cherish goals.

The PBC leaders strongly condemned the increasing tendency of surveillance and harassment of judges of the superior judiciary by the establishment in their efforts to subdue the judiciary in maintaining their independence while discharging their judicial responsibilities.

The bar leaders also expressed their grave concern on the alleged continued victimization of the political leadership of mainstream political parties, especially those in the opposition, by the government through National Accountability Bureau, by involving them in politically motivated cases. They highlighted the need for consolidation of the democratic process in the country and therefore called upon the democratic forces across the country to play their effective role in this regard.

Published in Dawn, June 13th, 2020