Justice Isa reference: SC judge for criminal proceedings against Shahzad Akbar, others

The federal government tried to remove Supreme Court judge Qazi Faez Isa through illegal means, said a dissenting note in a case pertaining to “mala fide” presidential reference against the top judge.

In a dissenting note, Justice Sajjad Ali Shah questioned the intent of the government behind filing the reference and its methods to locate the properties owned by Justice Isa’s family, as he sought criminal cases against the government officials.

He questioned: “Are we governed by the constitution and the rule of law or can the government of the day conveniently get off the constitutional rails to suit its ends and come prying into the private lives of its citizens in disregard of their constitutional rights?”

The judge said the complainant could only have approached the constitutional forums provided under Article 209(5), adding that the very act of approaching the Assets Recovery Unit (ARU) was per se unconstitutional and illegal.

“It is noted with concern and suspicion that how did the complainant, a citizen of this country, plan on filing the complaint against a constitutional court judge before the ARU, which had no public
interface or the legal mandate…”

Instead of approaching the forum concerned, the complainant’s decision to move the ARU against the judge “raises eyebrows about the credibility of the complaint”. “It is no rocket science to put the facts together to discern that the complainant was fed the information to generate the complaint,” the note commented on the complainant being a “journalist”.

“The establishment of the ARU was, therefore, absolutely without lawful authority, and is hereby so declared. In the absence of any legal status of the ARU, its Chairman and Members also have no legal position or status,” the judge wrote.

The judge said that the ARU chairman and legal expert “procured the information regarding the UK properties by offending the fundamental rights…without the sanction of any law”, going on to call these actions criminal.

For indulging in unlawful practices to gather data on the SC judge, the dissenting note said that the authorities concerned “must initiate criminal and disciplinary proceedings against the ARU chairman, legal expert and [its] members, as well as, the defaulting officials of FBR [Federal Board of Revenue] and NADRA [National Database and Regulatory Authority] under the IFTA, ITO and NADRA Ordinance, 2000”.

‘MALICE AND ILL-WILL AGAINST JUDGE’

Justice Maqbool Baqir also penned a dissenting note, wherein he said that the “respondents have violated all of the above and carried covert surveillance of the petitioner and his family without any rhyme or reason, wholly illegally”.

Criticising the presidential reference sent to the SJC, he said: “Had the president applied his mind
independently, he would have readily and surely appreciated that reliance of the chairman ARU, the law minister and the prime minister, on a purported report obtained by the chairman ARU was
wholly unconstitutional, unlawful, illegal, inappropriate, misconceived and mala fide.”

“The reference springs from actual malice and ill-will harboured against the petitioner by the concerned state functionaries on account of the Faizabad dharna judgment and a common desire to ensure his absence from the review thereof,” the judge wrote.

JUSTICE ISA CASE:

In June this year, the SC dismissed the Pakistan Tehreek-e-Insaf (PTI) government’s presidential reference against Justice Qazi Faez Isa and referred the matter to the FBR for further probe.

Justice Qazi Faez Isa is an SC justice who took oath as a judge of the top court in September 2014. He is scheduled to become the chief justice in August 2023 for thirteen months.

His landmark cases include the Faizabad Sit-in judgment in 2019, the Quetta Massacre Commission in 2016 — when he headed an inquiry commission to find out what happened when a suicide attack in August 2016 killed 74 people — and the Memogate Commission in 2012, a case where an alleged memo was delivered to an American official at the behest of former ambassador to the United States (US), Husain Haqqani, in May 2012.

In May 2019, media started reporting that references were being filed against SC judges Reports became so rampant that Justice Isa approached President Arif Alvi, complaining that information being leaked to the media amounted to character assassination, which would hinder his right to a fair trial. He also asked the president if a reference was being filed against him by the president in the SJC.

There was no reply by the president and soon, a notice was sent to the federal government by the SJC that a reference was being filed against him and another judge, accusing them of concealing assets.

Justice Isa then wrote another letter, in which he said that he could’ve handled the inquiry against him and his family but it seemed that the independence of the judiciary was being undermined and that a judge had to preserve and protect the constitution as he had sworn to do.

He then asked the SC that a full bench be constituted, a plea that was accepted by then CJP Asif Saeed Khosa, and after a months-long trial, a full bench of the apex court on Friday dismissed the petition against him.