“We cannot legislate for the unknown consequences of consequences of consequences.” — Isaiah Berlin
THE current rulers’ witch-hunt against Justice Qazi Faez Isa through a presidential reference has been finally consigned to the garbage heap of judicial history by the Supreme Court through its review order dated April 26, 2021, by partially modifying the original SC majority order and the judgement of June 19, 2020. But this great victory for judicial independence may have both intended and unintended consequences.
Original order and judgement of June 19, 2020: All 10 judges hearing the original constitutional petitions against the reference had agreed on two main points ie firstly, the presidential reference against Justice Isa was quashed, and secondly, the show cause notice proceedings before the Supreme Judicial Council (SJC) abated. But beyond these two main points of agreement, there were disagreements on key issues between the principal majority judgement authored by Justice Umar Bandial and the principal minority judgements authored by Justice Maqbool Baqar and Justice Mansoor Ali Shah.
Only public legitimacy through judicial reform and effective constitutionalism can secure judicial independence.
Disagreeing with the majority judgement of Justice Bandial, the minority judgements held and directed as follows: firstly, paras 4 to 11 of the majority judgement were not accepted and it was held that the matter regarding the foreign properties of Mrs Isa and her children could not be referred to the FBR and no further proceedings could take place against Justice Isa before the SJC on the basis of any findings or report of the FBR regarding these foreign properties. In other words, the witch-hunt to remove Justice Isa would come to an end.
Secondly, the preparation of the presidential reference was tainted not simply by gross and blatant legal violations (‘mala fides in law’) but was prepared with mala fide intent (‘mala fides in fact’) eg the collection of information involved illegal surveillance and invasion of privacy etc.
Thirdly, the Asset Recovery Unit (ARU) and its chairman were declared illegal.
Fourthly, the authorities were directed to initiate criminal and disciplinary proceedings against the law minister, chairman ARU and other concerned defaulting officials linked to this reference.
Fifthly, the chief justice should consider initiating proceedings against the initial illegal leaking of the presidential reference, which led to a defamation campaign against Justice Isa.
Review order of April 26, 2021: It is a misconception that the Supreme Court through its review order has set aside the entire majority order and judgement of June 19, 2020. The review order only recalls and sets aside paras 4 to 11 of the short order “along with supporting detailed reasons” and all subsequent consequences. This means that the majority judgement has been set aside only to the extent of its directions to the FBR to conduct proceedings in relation to the foreign properties and tax liability order passed against Mrs Isa, the filing of the FBR report before the SJC and possible proceedings against Justice Isa by the SJC.
Therefore, it is important to clarify that further findings and directions of the minority judgements regarding the mal-intent of the perpetrators, the ARU having been declared illegal, disciplinary and criminal proceedings against the law minister and others, and a Supreme Court inquiry into the leaking of the reference, have not been reaffirmed in the review order and remain a part of the minority judgements of June 19, 2020. Thus, findings contrary to the original majority judgement on these particular issues have not been set aside. In other words, although removal proceedings against Justice Isa have ended, no legal consequences of accountability will follow from this review order against the people involved in the preparation of this mala fide presidential reference.
Consequences of victory: Along with the lawyers movement (2007-2009), Justice Isa’s case will be seen as a milestone in the independence of the judiciary. But victory gives rise to both opportunities and challenges.
Firstly, Pakistan’s superior courts have emerged as among the most powerful courts in the world. Domestically they are feared as much as the military establishment. Short of a military takeover, these judges are secure. But will these superior courts use their tremendous power to secure themselves and their privileges, or will they, in order to sustain their public legitimacy, use this power for judicial reforms, strengthening constitutionalism and democracy and enforcing fundamental rights (media freedom, missing persons, ending discriminatory accountability etc)? The lesson from the lawyers movement and Justice Isa’s case is simple: only public legitimacy through judicial reform and effective constitutionalism can secure judicial independence.
Secondly, is the slaying of judicial accountability the price to be paid for safeguarding judicial independence? Judicial power without judicial accountability is arbitrary and blind, and judicial accountability without secure judicial power is empty and useless. As rightly noted by Justice Yahya Afridi, without transparent accountability, judicial autocracy will follow. Therefore, the SJC must become fully functional and conduct judicial accountability openly, transparently and without delay.
Thirdly, a very powerful judiciary exercising constant judicial overreach can lead to democratic and state institutions becoming dysfunctional and weak. In other words, a powerful judiciary has to be made compatible with democratic institutions and a functional state because without democracy and an effective state an independent judiciary is only a beautiful idea without body and soul.
Fourthly, a powerful judiciary, independent democratic elites and an effective civil society are incompatible with a de facto powerful military establishment. Thus, victory in the Justice Isa case will make the establishment extremely insecure. Therefore, a national dialogue among the political, military and judicial elites as well as with key civil society stakeholders is the need of the hour. The hard political reality is that the insecurities of the military establishment have to be addressed but the military establishment must also realise that any overt or covert intervention in the present circumstances will be disastrous. In other words, in the case of potential military intervention, there will be no functional country left for the military establishment to rule over.
With insurmountable challenges facing this country, there is little hope. But when I see the courage of Justice Isa and his family and how the Supreme Court and the lawyer’s community safeguarded judicial independence against unimaginable odds, I am compelled to be hopeful.
The writer is a lawyer.
Published in Dawn, May 1st, 2021