Justice Maqbool Baqar and Justice Mansoor Ali Shah unveiled their dissenting notes in Justice Faez Isa case a few days ago. Both judges have respectively described the majority verdict as “anomalous” and the reference was based on “mala fide of facts.”
Justice Mansoor Ali Shah in his dissenting note in Justice Isa case has directed authorities concerned to initiate criminal & disciplinary proceedings against Chairman, Legal Expert & Members of ARU &, against other defaulting officials of FBR & NADRA for their
illegal acts. pic.twitter.com/EEhOyxW4Kp
— Hasnaat Malik (@HasnaatMalik) November 4, 2020
Notably, a ten-judge bench, headed by Justice Umar Ata Bandial, on June 19 quashed the presidential reference that claimed that Justice Isa had committed misconduct by not disclosing his family members’ London properties and sought his removal.
In the split verdict, seven of the judges had, however, referred the matter to the Federal Board of Revenue (FBR) and asked the taxman to submit its report to the Supreme Judicial Council (SJC) which could resurrect the reference based on the report.
The seven judges who wrote the majority verdict issued their detailed order on October 23, describing the presidential reference as based on “mala fide of law.”
Justice Shah’s main arguments
Justice Syed Mansoor Ali Shah in his 65-page dissenting note observed that the presidential reference against Justice Qazi Faez Isa was tainted with both mala fide of law and mala fide of fact. “The actions of entertainment of the complaint [against Justice Isa], the investigation and surveillance for the collection of evidence, the putting up of summary before the prime minister by the law minister and finally the approval of the summary by the PM and placing the ‘information’ before the president under Article 209(5) of the Constitution for removal of [Isa] are found to be tainted with both mala fide of law and mala fide of fact,” he noted.
The main points as highlighted by Justice Shah can be summed up as follows: a) no compromise on judicial independence in the grab of judicial independence; b) judges and their families enjoy constitutionally guaranteed right to privacy; c) information procured through illegitimate and illegal sources is not admissible; d) a judge of the constitutional is not responsible for tax-related matters of his independent children and spouse; e) Abdul Waheed Dogar’s credibility raises eyebrows and his reputation is dubious; f) Supreme Judicial Council (SJC), not Asset Recovery Unit (ARU) was the appropriate forum to be approached; g) privacy, liberty and dignity are the basis of a democratic society.
A public servant should be questioned about his/her spouse’s assets?
GVS spoke to some legal experts to understand the context and impact of Justice Shah’s dissenting note. “There is no disagreement about the fact that personal freedoms and constitutionally guaranteed right to privacy help societies evolve and absorb fresh ideas to ensure collective growth,” said an analyst. “However, there needs to be a difference between what falls under the preview of privacy or personal freedom and what does not,” he added.
On the question about how should public office holders be treated to ensure that their right to privacy is protected? He maintained that: “The matter becomes even serious when a judge of a constitutional court—a public servant— is being questioned. Financial matters of a judge and his spouse cannot be ignored so conveniently when a case is in front of us and the parties (judge’s family) have admitted the ownership of the said properties. Similarly, a judge’s or any other public servant’s spouse cannot be treated independently in financial terms: a public servant shouldn’t be questioned about the financial matters of his dependent/independent spouse? Every other officer’s wife/husband would become a successful businessman/woman in the coming years!”
No reference from the Islamic tradition given?
The analyst also pointed out that “Justice Shah quoted Aristotle, John Stuart Mill, Sir Edward Coke and Justice Louis Brandeis to give a historical and intellectual background of the idea of privacy. While doing so, the judge attempted to make a point that ‘right to privacy is of utmost importance in democratic societies’”. “However, he did not quote anybody from the Islamic tradition. My personal understanding suggests that Justice Shah would have founded more examples to establish the theoretical basis of the idea of privacy and its practical manifestations had he looked at dynamics of privacy in the early Muslim societies,” he lamented.
“It was also disappointing to see a judge of Shah’s stature questioning the credibility and repute of the complainant. Has he given accurate information about a judge and his family or not? The focus of the judgment, in my humble view, should have been on the nature and scope of the information provided by the complainant, not on his repute or personal character,” the expert noted.