Justice Maqbool Baqar and Justice Mansoor Ali Shah have unveiled their dissenting notes in Justice Faez Isa case. 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 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 SC judge said all the government actors are held responsible. However, as the buck stops with the PM in a constitutional parliamentary democracy, the major burden of these malicious actions falls on the shoulders of PM Imran Khan, “who also happens to be the leader of a political party”.
Justice Faez Isa was deliberately targeted, Justice Shah
Justice Faez Isa was deliberately targeted, observed Justice Shah. “If we start reading the events after the Faizabad dharna judgment [authored by Justice Isa], one is compelled to conclude that the judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power.”
کیا ہم جمہوریت میں آگے بڑھ رہے ہیں یا احتساب کے نام پر تنقیدی عدالتی آوازوں کو دبانےکیلئے غیر آئینی اقدامات کی اجازت دے کر اندھیرے کی طرف واپس جارہے ہیں؟ جسٹس فائز عیسی کیس میں جسٹس منصور علی شاہ کا اختلافی نوٹ
— Shahzeb Khanzada (@shazbkhanzdaGEO) November 4, 2020
The judge also referred to the review petitions filed against the Faizabad verdict in the apex court by a number of petitioners including the ruling PTI. In the Faizabad verdict, Justice Isa had highlighted the alleged role of intelligence agencies in creating political unrest in the country.
It is important to understand the background of the case. Justice Isa is said to be facing ‘consequences’ after he delivered a strong-worded verdict in the Faizabad sit-in case.
The judgment authored by Justice Isa drew some broad and important conclusions. For example, the court has directed the federal and provincial governments to monitor and prosecute those advocating hate, extremism, and terrorism.
The judgment further states that any person who issues an edict or fatwa that “harms another or puts another in harm’s way must be criminally prosecuted under the Pakistan Penal Code, the Anti-Terrorism Act, 1997, and/or the Prevention of Electronic Crimes Act, 2016.”
Information was gathered through surveillance, Justice Shah
Justice Shah also said the ARU collected evidence by violating the sphere of absolute privacy right of the petitioner judge and his family through surveillance, and without backing of any law for its authority to do so.
“Therefore, such evidence/material was liable to be excluded from consideration without any exception, and the law minister and prime minister could not have relied and acted upon it, for making the ‘summary’ and advising the president respectively,” he said.
Justice Shah said any covert surveillance or interception of the citizens of Pakistan other than under the IFTA is starkly offensive to their fundamental rights of privacy and personal liberty.
He added that the ARU did not possess the resources or the technical capacity to carry out surveillance of the judge and the interception of their communications gives credence to the stance that the surveillance was carried out in connivance and in collaboration with the intelligence agencies.
“The possibility of such happening, therefore, cannot be ruled out in the absence of any other evidence to the contrary, on the record,” he noted.
Justice Shah said the establishment of the ARU was also absolutely without lawful authority. “In the absence of any legal status of the ARU, its chairman and members also have no legal position or status. The appointment of the ARU chairman by the cabinet was without lawful authority, and is so declared,” he said.
Justice Shah directed the authorities to initiate criminal and disciplinary proceedings against the ARU chairman, legal expert and members as well as, other defaulting officials of the FBR and the National Database Registration Authority (NADRA) for their illegal acts, under the IFTA, ITO and NADRA Ordinance.