Justice Qazi Faez Isa reference: Supreme Court in a fix?

The judiciary stands at a crossroad. After years of imposing accountability on the executive and legislature, the ghost of accountability has reached the bench itself. Will the judges protect one of their own, or will they uphold the rule of law?

Supreme Court Qazi Faez Isa

A dialogue from the movie “Scent of a woman” captivated my imagination in the coming years and decades. The gritty retired colonel on one occasion was trying to convince Charlies Simms (a charming young school student ) to refrain from taking a stand based on ethics and morality. Colonel Flake said, “Charlie, I have come to crossroads in my life; I always knew what the right path was, without exception I knew, but I never took it. You know why? It was damn too hard”. This sits well with the current Justice Qazi Faez Isa case ongoing in the Supreme Court.

The hearings in the supreme court of petitions challenging presidential reference against Justice Faez Isa have entered the most critical phase. Hearings of proceedings in the top court have attracted massive public attention.

The case defines judiciary’s accountability

Each and every moment, comment and argument is being archived to form part of our future judicial discourse. There are immensely important dimensions associated with these proceedings and I presume that it’s of paramount importance to dwell upon some important dimensions of this case.

These dimensions are of political, moral, and ethical nature. Encompassing every aspect is inevitable to understand what all is at stake.

Read more: PTI government contests SC judgment on TLP Dharna

The movement for independence of the judiciary in 2007 profoundly impacted the political and judicial discourse in Pakistan’s realpolitik. The judiciary by virtue of Iftikhar Chaudhary’s restoration became mighty powerful.

Bar councils that played a galvanizing role in that movement snatched a tangible share of power, good enough to get away with merciless killings of patients at the Punjab Institute of Cardiology. In any functional democratic society such killings would have constituted an act of terrorism.

Legal fraternity – a holy cow?

Still our glorified ex-chief justice Asif Saeed Khosa had the audacity to dispel the assertion of our prime minister that there exist different standards of justice for the meek and powerful. Political parties and their leadership successfully restored electoral democracy as a result of that movement and enjoyed the uninterrupted reign of power since the eventful coronation of Iftikhar Chaudhary.

Ironically the general public without whose participation the restoration couldn’t have been achieved still remained deprived in the new power equation.

Read more: The Faizabad dharna judgment – Saad Rasool

Since the restoration of Iftikhar Chaudhary the judiciary had been accused of systematically encroaching the executive domain. The pace and scale of encroachment remained dependent on the approach of sitting chief justice of the supreme court.

The apex court since that eventful restoration had disqualified two sitting prime ministers, summoned ex-military and ISI chiefs in the famous Asghar Khan case, summoned senior ministers,  police officers, bureaucrats, leading media juggernauts in various hearings.

Rise of judicial activism

The apex court took upon itself to initiate corrective discourse of every important executive department from education to health and all the state-run commercial entities from Railway to PIA. Ironically it also attempted to fix mobile call rates that eventually caused a staggering loss of approximately 100 billion rupees in revenue collection for the year 2018-19.

The apex court scrapped agreements with multinational companies subsequently challenged in international arbitration forums slapping Pakistan with huge fines. For instance in the Reko Diq case Pakistan was fined 6 billion dollars by ICSID.

Read more: Faizabad Dharna: Another Reminder that Pakistan Needs to Beef up State Competence

It was mentioned in the ICSID’s verdict that that “Pakistan Supreme Court was quite oblivious to international law and conventions regarding the agreements and contracts and lacked professional skill”. Such damning observations and colossal financial implications could not deter our superior judiciary from taking suo-moto notices of cases perceived to fall in the ambit of the executive domain.

A powerful and independent judiciary is the essence of any functional democracy. But absolute power historically makes individuals and institutions beyond accountability. Institutional power that hinders the path of accountability is a curse rather than a blessing for any institution in a democratic system.

Since the judiciary spearheads the cause of dispensing justice to all other subjects of the state that places greater responsibility on it as an institution to exhibit impeccable display of individual and institutional accountability.

The resignation of Justice Farrukh Irfan Khan was once such an admirable act that contributed in restoring faith in the institutional accountability of the judiciary. Although Justice Khan in his resignation hurled baseless accusations of bias against the supreme judicial council (SJC) but any keen observer would understand that the accusations were a futile effort for consolatory self-redemption.

Judiciary at a crossroads 

The case of Justice Faez Isa has enormous stakes for the judiciary too. The public interest in this case is unprecedented for multiple reasons. The general public is eagerly awaiting to see the delivery of justice in an extraordinary case where one among the lordships is defending himself against a presidential reference.

The public is comparing the intensity and bitterness of remarks from the bench in this particular hearing with those remarks unleashed when a bureaucrat or a politician is defending himself in cases of identical nature.

The public is aware that an ex-prime minister was disqualified in a case involving offshore assets in the name of his family members, the current prime minister successfully defended his financial integrity in a similar case and his most trustworthy confidant Jehangir Tareen was disqualified for owning a property abroad in the name of his children.

Read more: Supreme Court lashes out agencies for not presenting fresh report on Faizabad Dharna

Ironically Jehangir Tareen justified the purchase of property through legal sources but still got disqualified on the basis of interpretation of trust deed. Will the honorable lordships stick to the same standards of justice once one of their brethren is defending charges that are monozygotic in nature?

The line of defense adopted by the defense team of Justice Faez Isa is tragicomic and pugnacious which is doing a disservice to his reputation and stature.  They have termed the reference an assault on the independence of judiciary stemming from the decision Justice Isa delivered in Faizabad dharna case.

Different standard for different people

He accused the Prime minister, the President, and the establishment for targeting the honorable judge and most deploringly objected to the sitting of two honorable judges in the earlier bench on the principle of avoiding conflict of interests for the sake of fairness. So with this, can we assume that a judge, in any case, shall be incapable of delivering justice when there are some perceived interests involved?

Read more: PTI’s Tryst with Destiny

The approach of Justice Isa defense team is extremely disappointing in context that Justice Isa had become a metaphor of integrity, honesty and abidance to the constitution in the eyes of a particular segment. A segment of media and intelligentsia promoted the honorable judge as an icon possessing extraordinary and superior character traits among the present lot.

With such an iconic image the arguments of Justice Isa’s defense council are disappointing and tantamount to hiding behind legal intricacies, blaming the messengers, shouting conspiracy, and foul play.

Instead of providing the bench with justified sources in the purchase of offshore properties in the name of his wife the defense team has blamed the sitting prime minister and politicians of committing similar offenses despite the fact that this prime minister received a certificate of financial honesty from the apex court after he produced all relevant details about the properties he owned in Pakistan and abroad.

The prime minister never pointed fingers at others for committing similar offenses once defending his financial integrity.

If the bench allowed procedural flaws in filing reference as cause of throwing the reference or declaring it mala fide then a layman like myself will perceive it as double standards and murder of justice. It will be seen as a meek surrender and an escape from justice.

If the arguments pleading the reference as causation of anti-establishment decisions by the honorable Judge are accepted in this very case then no individual reputably anti-establishment could be prosecuted for any crime on the same pretext.

If accusing the prime minister or politicians of committing a similar offense becomes a plausible argument then every accused deserves a right to be exonerated on the basis of accusing others.

Testing times for the judiciary

The judiciary in the case of Nawaz Sharif did not take into account the fact that there were many other Pakistanis mentioned in Panama leaks owning offshore assets to justify assets owned abroad by the Sharif family.

Delivering justice and raising the standards of morality and ethics when judging offenders from other cast becomes cynical and meaningless if the same standards are not applied once trying one of our own.

 

Article one of Judges code of conduct asserts that “equiponderance stands heavens and the earth. By equiponderance unequal burden is removed. The Judge’s task is to ensure that such equality should prevail in all things”. Article IV of the code emphasizes that justice is not only done but is also seen to be done.

Read more: The Dharna Judgment – Our New Judicial Discourse?

If a prime minister of a country is compelled to produce a complete money trail to justify his offshore assets and a judge is exonerated from producing money trail on the pretext of legal intricacies, procedural irregularities, accusations of mala fide intentions and assault on the independence of judiciary then that won’t be seen as equiponderance.

It by no means will contribute to ensuring that justice is seen being done.

We are at a very critical juncture of our judicial discourse. Not only honorable Justice Isa but the entire bench hearing the petition against presidential reference is at a crossroads. Without exception, we all know the right path. The right path is sticking to the same standards set in the similar cases against two prime ministers of Pakistan.

The nation is awaiting the defense team of Justice Isa to produce the money trail and redeem the honorable judge. The right decision for the bench is to strictly abide by the precedence in such cases.

The right path we all understand is arduous. But arduous paths lead nations to remarkable destinations.

Aamir Khattak is an MPhil graduate in Strategic and Nuclear Studies from National Defense University Islamabad with 25 years’ experience of serving in defense services. Focuses primarily on International conflicts, security issues and media narratives. The views expressed in this article are the author’s own and do not necessarily reflect Global Village Space’s editorial policy.

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