JUSTICE Faez Isa has won. His review petition challenging the directions given to the FBR to probe his family by the full bench of the Supreme Court has been accepted. It is a “triumph for the rule of law and constitutionalism” according to this paper.
However, this ‘triumph’ barely avoided the abyss en route to the finish line. Let us gaze into the abyss to see why it gazes back. “This is too much … it is sheer bullying,” Justice Baqar reportedly exclaimed in exasperation before leaving the court on April 22, causing a 10-minute adjournment in the proceedings. How did the hearing get so heated?
Things first took an unprecedented turn when Justice Isa applied to the apex court for televised hearings of his review application. He argued that his position was being misrepresented to the people, who deserved to hear his stance without adulteration. In terms of global practice, audio recordings of the US supreme court proceedings are available online. Right before Covid struck, the audio of the successful challenge to Boris Johnson’s dissolution of parliament ahead of the Brexit vote was aired live from the UK’s supreme court.
Whilst the public has a right to see the wheels of justice in motion, court recordings also assist in improving the delivery of justice itself. The world has moved to a point where the process of judicial determination is increasingly digitised and hence on record. It is like an algebra exam. There are marks for getting the right answer. But there are separate marks for showing how you reached the answer. Not only is it necessary to get to the right destination, but also to take the right route to it. Further, when you are on record, you are more accountable and less arbitrary. It is human nature. And when you are on record, there can be objective determination of your conduct.
The public deserves to see and learn from the process by which Justice Isa won after having nearly lost.
Justice Isa’s application for a televised hearing was dismissed 6-4. The dissenting judges ordered that his trial was of public interest and must be made available to the public by any means necessary. The majority dismissed his application whilst accepting the right of the public to be informed of matters of public importance, but left the ‘details and modalities’ to be decided by the Supreme Court administration.
All 10 judges agreed with Justice Isa’s central premise: the public had a right to witness trials of public importance first-hand. His trial continued without being broadcast.
He was repeatedly asked by the bench to keep his submissions brief, most notably by Justice Baqar. Then the government was allowed to present its arguments, even though they had not even petitioned for a review. Although in the June 2020 order all 10 judges had rubbished the government reference, the government’s lawyer presented arguments to support it. In doing so, the counsel was reported to be reading in detail from past judgements, rather than limiting his submissions to the relevant paragraphs and summarising as per practice. When Justice Baqar asked him to hurry up, another member of the bench told him to continue at his desired pace as this wasn’t “a race being run”. This is when Justice Baqar exited in exasperation.
There was, however, a race involved here. Justice Manzoor Malik was retiring at the end of the month, after which the bench would lose its weight and balance. It was for this retirement that the government lawyer was being accused by lawyers of delaying the process, by arguing extensively and even irrelevantly. Once the bench was weakened, the government could have continued its two-year fishing expedition for evidence it never had when it first besmirched Justice Isa’s name.
One of judges had repeatedly asked for the report filed in pursuance of the reference sent by the Supreme Court to the FBR to be made part of the review. Justice Isa argued that the FBR report is a task the court had given to the executive in error, which he was out to prove. If he were to respond to the report and address its contents, he would effectively be accepting the FBR’s right to probe him and the apex court’s June 2020 direction regarding the same. To him, the FBR investigation was the fruit of a poisoned tree and to respond would render his review redundant.
Reviews, by definition, are confined to any errors present in the orders themselves, hence no new or subsequent events can be put on record. This usually inhibits the applicant’s ability to prove an error. Here, extraordinarily, the applicant was arguing that a subsequent event cannot be made part of the hearing, whilst the court was allowing for it to be made part of the record by the government which had never filed for review in the first place. It was truly unprecedented.
Justice Isa called the government lawyer’s long-drawn-out reading of the law an attempt at filibustering his review.
But filibustering happens where someone is exercising the right of audience. Filibusters occur in public. They are intended for show, so that the visuals of a single individual hampering the executive juggernaut can be witnessed by all — akin to a hippie chaining himself to a tree, stalling the chainsaw cranes. They are used against the inevitability of power, to forestall a likely outcome.
Here, the filibustering was not against Justice Isa’s right to a review, but against the court itself — to hamper its ability to adjudicate. Audi alteram partem allows one to reach the podium to present one’s case, it does not allow one to stand and deliver deliberate rubbish once there. Yet it went on.
When the bench returned from its break after Justice Baqar’s exclamation, Justice Bandial remarked that Maqbool Baqar was the ‘darling of the bench’.
The government’s lawyer continued reading, pausing at one point to apologise to the court as he had just narrated the wrong judgement. The order allowing the reviews came later in the day once he was finally finished.
The public deserves to see and learn from the process by which Justice Isa won after having nearly lost. It can then decide for itself whether Justice Baqar was actually the court’s darling, or an annoying spanner in the works of a grand bemedalled affair.
A few days before the June 2020 order, Justice Baqar had reminded us that an elected government was once removed for spying on judges. Whilst they are not hippies, the government’s wait for the detailed judgement must now feel like being chained to a tree.
The writer is a lawyer.
Published in Dawn, May 9th, 2021