Judging judges

We need to wait and see where the Justice Isa case and his ultimate fate leaves judges and judicial independence

In the Justice Qazi Faez Isa case, the government lost. Its reference to the Supreme Judicial Council was quashed unanimously. No amount of spin can detract from this fact. The government may well state that all it was ever interested in was accountability of judges. Even if the claim is accepted, the manner in which the government undertook this task has been held to be wrong and unlawful.

Apart from these findings, the majority short order (the Order) gives certain time-bound directions to the tax authorities. The commissioner has been directed to issue notices to Mrs Isa and her children within seven days to offer an explanation regarding the nature and source of funds (separately for each property) of the three properties in London. These notices supersede all previous notices that may have been issued in respect of these properties which stand terminated.

The commissioner has been directed to make an order within 75 days of receipt of the notices at Justice Isa’s Islamabad address. Within seven days of the commissioner’s order, the chairman of the FBR has been required by the Order to submit a report personally signed by “him” (the current “chairman” is a woman) regarding the proceedings to the Supreme Judicial Council (SJC). The report must append the entire record of the proceedings before the commissioner. Apart from attaching this record, it is not clear whether the report from the head of the FBR is required to address anything else.

This FBR report will be placed by the chairman of the SJC (the CJP) before the SJC for such proceedings, if any, in relation to Justice Isa as the SJC may determine. The entire process before the SJC is deemed to be in exercise of the suo moto powers of the SJC.

In Para 11, the Order clarifies that the tax proceedings against Mrs Isa and her children are “distinct” and “separate” from the proceedings against Justice Isa before the SJC. All appellate rights of respondents in respect of the commissioner’s orders in the tax proceedings are expressly preserved.

The proceedings before the SJC shall not be impacted by the filing or pendency of any appeal in the tax proceedings. The SJC may, however, take notice of the appellate proceedings and any orders therein and may also consequently make appropriate orders and give directions in relation to the proceedings before it against Justice Isa.

Even though manned by judges (including the CJP), the SJC is not a court. It is the constitutional body authorised to inquire into the conduct of a judge. Under Article 209 if, on information from any source, the SJC or the president is of the opinion that a judge may have been guilty of misconduct, the president shall direct the SJC or the SJC may on its own motion inquire into the matter.

Regardless of Justice Isa’s fate, an order has been passed which directly impacts parties who were not before the court.

Article 209 contemplates a two-stage process. First, the SJC or the president must form an opinion that the judge may have been guilty of misconduct. Second, in such eventuality either the president may direct the SJC or the SJC may suo moto inquire into the matter.

The Order dispenses with both these phases. In the present case, neither the president nor the SJC will have formed any opinion on the matter. The original reference has been quashed. The new information contained in the FBR report will be placed directly before the SJC and will be considered by the SJC in its suo moto jurisdiction. There will be no initial evaluation or opinion either by the president or the SJC.

Even after this initial opinion, the SJC has discretion whether to inquire into the matter suo motu. This discretion has been removed by the Supreme Court in this case. The SJC must consider the FBR report.

The scope of Article 209 has been expanded. The Supreme Court (and perhaps any court) can direct an agency to place a report before the SJC and can require the SJC to consider the matter in exercise of its suo motu jurisdiction. This ‘deemed’ suo motu against a sitting judge based on a direction by a court is a novelty.

The initial foundation of the presidential reference against Justice Isa was his failure to declare to the tax authorities the three properties. The FBR has not been tasked by the Order to determine whether Justice Isa complied with tax laws. His spouse and children, who were not represented before the Supreme Court and were not parties in any petition before the Supreme Court, have been made subject to proceedings under tax laws. Since they were not parties, they have no right to seek review of the Order or any detailed judgment of the Supreme Court which adversely impacts them. Regardless of Justice Isa’s fate, an order has been passed which directly impacts parties who were not before the court.

Judges, like other citizens, are bound by Pakistan’s tax and other laws. They must declare and pay tax on income and make accurate wealth declarations. If any judge does not pay tax or otherwise fails to comply with applicable tax laws, the tax authorities can take appropriate action. There is no judicial immunity against legal proceedings unless the proceedings relate to actions of the judge while performing duties.

The special protection available to judges is security of tenure. This is necessary for judicial independence. They can only be removed from office by the president based on an opinion of the SJC that the judge is guilty of misconduct and should no longer continue.

The liability to be removed from office for misconduct is distinct from the legal liability of a judge for breach of a law. Not every illegality constitutes misconduct justifying removal. Similarly, acts which may be lawful could still constitute judicial misconduct justifying removal from office.

Absent the detailed judgment, no definitive conclusions can be drawn. We need to wait and see where the Justice Isa case and his ultimate fate leave judges and judicial independence.

The writer is an advocate of the Supreme Court of Pakistan.


Judging judges