COMMENT: A question of judiciary’s independence

Updated June 20, 2020

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“All institutions have been trampled over. We are not against any person or institution; we stand with the rule of law and the independence of the judiciary," remarked Justice Maqbool Baqar
“All institutions have been trampled over. We are not against any person or institution; we stand with the rule of law and the independence of the judiciary," remarked Justice Maqbool Baqar

IF you ask lawyers what kind of clients are the most difficult, everyone will usually have a different opinion to offer. Ask Justice Faez Isa’s lawyers, and whatever their previous vie­w, their opinion may have changed recently.

As we have seen in the proceedings before the 10-member full bench of the Supreme Court, it seems the most troublesome clients are judges themselves.

Justice Qazi Faez Isa only challenged the Supreme Judicial Council proceedings filed against him by the President after a show cause notice was issued to him by the body. This delay is being used by Farogh Naseem as evidence of his having surrendered to the SJC process, and argues Justice Isa has hence ‘missed the bus’ for challenging it. Justice Isa continues to file replies to miscellaneous applications on his own accord, signing and submitting them himself.

Facing a government allegation of misconduct which is being repeatedly exposed as an amateur frolic into investigation, Justice Isa embarked on an amateur investigation of his own. The government tried to answer how it discovered the properties belonging to Justice Isa’s wife and children in England as they could not have simply been searched for in the land registry, as first claimed.

This was an important development as the judge’s legal team was alleging that such information could only have been attained through illegal surveillance of him and his family.

The government says this information is easily searchable, and cites as examples the use of a website, 192.com, where upon payment of a fee, proprietary holdings can be searched by entering names.

Justice Isa responded firstly by highlighting how such an exercise would require a payment for the services along with a date of receipt, details of which have been withheld from the court. He alleged that these dates and payments are absent as they would prove that this website search was an afterthought to cover up the illegal surveillance he alleges was the actual method of information gathering.

Then Justice Isa did some searching on 192.com himself. Various entries carrying names similar to those of the prime minister, the former special assistant on information and broadcasting, as well as that of the Asset Recovery Unit chief turned up. Justice Isa submitted these results to the court.

When doing so he clarified that he was not making any allegations and was only highlighting how the individuals named still deserve due process of law and a right to reply to the results and their accuracy. Both rights were denied to him before being presumed guilty of misconduct by the government.

According to him, his searches also served as evidence of how inaccurate the information on such websites can be, and how naive it is of the government to rely on it.

Whilst someone self-developing independent lines of argument and repeatedly self-filing replies would qualify as enough to pin Justice Isa to the top of any list of nightmare clients, he was not quite finished.

On Wednesday, he turned up in court himself, and proceeded to address the bench even though his lawyer was attending on his behalf through video-link from Karachi.

Very quickly, however, it became clear that this was not Justice Isa deciding to take matters into his own hands as a lawyer.

It was instead the lament of a man on the receiving end of a concerted campaign of vilification and discredit, asking for his wife’s right to publicly clarify the issue of assets which the government had been so quick to accuse him of holding in her name. He also asked that the SC should decide upon the merits of his claim that he had been illegally surveilled, and that the actions of the executive were ill-intentioned and tainted with malice.

What prompted this very human moment was a subtle twist in the proceedings. As the case grew hairier for the government, to the point that the law minister once again had to resign to render his services gratis, a backdoor exit was hinted at by some: why not refer this matter to the FBR so that a process of showing cause can be initiated against the judge’s family?

The reference could remain pending, and if the family failed to satisfy the tax commissioner, it could then be reactivated on the claim of misconduct. This approach apparently also accepts the judge’s contention that any misconduct is yet to be proven.

Justice Isa arrived himself to reject it.

The trouble with this supposed middle ground is that the misconduct of the judge is not even in discussion before the full bench.

What has brought Justice Isa before it is the allegation that the case built against him has been triggered by malice, has been compiled through illegal means and is based on inaccuracies, which he has not been afforded an opportunity to address before being labelled a cheat.

What Justice Isa is alleging is that the executive is interfering with the independence of the judiciary; and doing so with a prior and ulterior motive: to remove an independent jurist for daring to hold our Constitution supreme.

After dragging his name through the mud, the government now wants another go. They want to do it right this time, through the FBR.

For the state to accuse someone of theft and later be proven wrong happens all the time. If the error is found to be especially egregious, the inspector loses his job. But if it is later found that the state framed the charges against the accused through illegal surveillance, contrived evidence which it covered up whilst publicly smearing the target, you get Watergate.

The President loses his job.

Bringing an end to conjecture of a possible retry-by-FBR, Justice Maqbool Baqar is reported to have remarked:

“We must do our utmost to ensure that we are not accused by history [of failing to act]. To ask us to allow for the executive’s incompetence without forming an opinion on what are presented as facts before us would bring judicial independence to an end. An act of incompetence by the executive cannot serve as a means to paralyse the judiciary.

“This case is a more serious matter than that of even Iftikhar Chaudhry. If the power to judicially review the executive’s actions is surrendered, it would destroy the entire scheme of our Constitution.

“The way our country is administered has repeatedly been meddled with. History attests to 60 years of repeated attacks by the executive upon the judiciary.

“All institutions have been trampled over. We are not against any person or institution; we stand with the rule of law and the independence of the judiciary.

“If this cause requires our sacrifice, so be it.”

At the end of Wednesday’s hearing, the federation’s lawyer is reported to have asked the bench about the option to send the matter to the FBR whilst the reference can remain pending. As the short order on Friday made clear by quashing the reference as well as the show cause notice issued to Justice Isa, he may have missed the bus.

The writer is a lawyer.

Published in Dawn, June 20th, 2020