Judicial escape

Pakistan Today

The government still has been left options

Following months of endless hearings and a relentless pursuit by the government and the supporters of judicial independence, the Mr Justice Qazi Faez Isa case finally came to an end, for the time being. The arguments at the rostrum spanned over a wide spectrum ranging from mala fides to tax discrepancies, misconduct and judicial surveillance. While some termed it as a form of judicial accountability, the far sighted ones were able to see the case for what it truly was; part of the fight for judicial independence.

Without having even read the presidential reference, the self-proclaimed analysts and experts of our country started lambasting the top judge amidst allegations of corruption and ill-gotten wealth. Unfortunately, owing to the underlying defects in the accountability process in Pakistan, any person with an accusation is convicted and found guilty by the social media prior to the commencement of his or her legal trial. No matter who the individual is, a mere accusation is sufficient to submerge his or her dignity under allegations of corrupt practices. The same has been the fate of Mr Justice Isa. An entire social media campaign continues to be run against him and his family calling upon them to be accountable. What this segment of society, whose judgement remains clouded, fails to comprehend is the root cause of the entire case; the vindictive agenda of the government.

Nevertheless, the top court finally rendered its much anticipated judgement. While the judgement was initially celebrated by the flag bearers of judicial independence, a careful scrutiny of the short order paints a disturbing picture. On the face of it, the presidential reference has been quashed and, resultantly, the show-cause notice stands abated. However, the case is far from over. In fact, it may have inaugurated the sequel of the entire case.

Nevertheless, the top court instead of stepping forward and issuing a bold decision, has escaped its way out of the controversial petitions. Controversial because a judge was being judged by other judges. This order can be quoted as one of the finest examples of a judicial escape in the modern times where the judiciary wriggles out of a tight spot instead of standing firm and issuing a strong verdict irrespective of the repercussions. Mr Justice Qazi Faez Isa, or I’d rather say, judicial independence, may have won the battle for now, but the war is far from over and is yet to come. With defeat in the first round, the opponents are more likely to come better prepared and strike back harder

Firstly, the seven honourable members of the bench, writing for the majority have directed the FBR to issue notices and proceed against the family members of Mr Justice Isa. Relaxation on the law of limitation pertaining to tax matters has been given for reasons hopefully to be unveiled in the detailed judgement. Secondly, a direction has been given against the family members of Mr Justice Isa who were never a party before the apex court nor were duly represented by their respective counsels. Though, the wife of the honourable Judge was granted the opportunity to present her stance, the same principle of natural justice should have been provided to the children of the petitioner judge.

The disturbing aspect of the short order is the vehement stance regarding submission of the FBR report to the Supreme Judicial Council and a detailed mechanism into how this exercise has to be conducted. If the reference under challenge has been quashed then what is the need for the SJC to examine the report of the FBR? More so when the FBR only has to proceed against the independent family members of Mr Justice Isa. A dangerous comment would lead one to believe as though the majority of the bench is already aware of any possible judicial misconduct on part of Mr Justice Isa which will be unearthed during the FBR proceedings. Why else would the bench feel the need for the SJC to go over the FBR report? A more pragmatic approach would have been the submission of the report before this bench which could have then made a judicial determination as to whether there was sufficient material for the matter to be referred to the SJC or otherwise.

In presence of strong allegations of state maneuvering against Justice Isa, the bench has also overlooked the influence and oversight of the government over the FBR. While on one hand the government reference has been binned, at the same time an opportunity has been provided to it to come back with something concrete. In fact, they have also been pointed in the right direction as most would assume, with all due respect to the honorable bench. The short order further details that, irrespective of the pendency of any appeal against any order of the commissioner, the SJC may make any order as it sees fit. What if the SJC decides to proceed on the basis of an order made by the commissioner and subsequently the same order fails to hold ground in appeal? Will the SJC proceedings abate or will they still continue?

The decision on Justice Isa’s case was one which would have redefined the future of our country’s judiciary and its independence. The entire country had its eyes towards the Supreme Court in anticipation of a victory. Unfortunately, most are happy on the reference being quashed but have failed to comprehend the veiled continuation of the proceedings. It is one of those instances where both parties have expressed their satisfaction over the decision and mostly such instances are dangerous for one of the parties in the future.

The government has readily accepted the verdict as it has found room for itself to create a new case against Mr Justice Isa by virtue of the FBR which can then be taken up by the SJC. The only silver lining in the order is the ouster of the government’s role in filing of a reference on this particular matter. It has been left open for the SJC to procced in its suo motu jurisdiction if the need be.

Nevertheless, the top court instead of stepping forward and issuing a bold decision, has escaped its way out of the controversial petitions. Controversial because a judge was being judged by other judges. This order can be quoted as one of the finest examples of a judicial escape in the modern times where the judiciary wriggles out of a tight spot instead of standing firm and issuing a strong verdict irrespective of the repercussions. Mr Justice Qazi Faez Isa, or I’d rather say, judicial independence, may have won the battle for now, but the war is far from over and is yet to come. With defeat in the first round, the opponents are more likely to come better prepared and strike back harder.

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