An unlawful reference

November 1, 2020

The scope of accountability of public servants (particularly judges) has entered unchartered territory

A majority of seven judges of the Supreme Court (the “Court have issued detailed reasons in the Isa J. case (the “Order”). The Order is authored by Bandial J. It is a damning indictment of the government.

The case involved a presidential reference against a sitting judge of the court. The government put its weight behind it. Government machinery and resources were used to investigate the judge and his family. The then attorney general prosecuted the reference before the Supreme Judicial Council (SJC). When the reference was challenged before the court, the law minister resigned to defend it.

The Order starts with the facts. It notes that the chairman of the Asset Recovery Unit (ARU) (which operates as part of the Cabinet Division and is housed in the PM House) took notice of this matter on the basis of a letter received from a journalist, Mr Dogar, on April10, 2019. The ARU chairman met with the law minister who authorised the ARU to undertake an investigation. Following the investigation, the ARU chairman wrote a memo to the law minister last year on May10. On the basis that this showed Isa J’s ownership of undeclared foreign assets, the Ministry of Law prepared a summary for the PM on May17, 2019. This summary from the Ministry of Law recommended to the PM to advise the president to file a reference alleging misconduct against Isa J. The president approved and signed the reference on May20, 2019 which was filed with the SJC on May23, 2019.

It took just six weeks from the complaint of a journalist on April 10, 2019 to filing of a presidential reference on May 23, 2019. The president, the prime minister, the law minister and the ARU chairman all worked quickly in this case. They were all involved in this reference. They are respondents in the petition in which the Order was passed.

Why does it matter that this reference was filed by the government? It matters first, because it means the government is expressing its lack of confidence in a judge. This is significant because the government is party to cases which may be heard by the judge. Second, the government can misuse the tool of a reference to try and remove a judge giving independent decisions against the government.

When the Gen Musharraf government filed a reference against the then chief justice, Iftikhar Chaudhry, the court struck it down and held that the reference was motivated by bad faith or bias - malice in fact. The Order holds that the same kind of bias has not been established in this case. It makes a finding instead of malice in law, which is grave illegality.

Ten major legal defects have been identified in the reference by the Order. The Order holds that “these illegal acts of the respondents depict their utter disregard of the law”. It goes on to state in strong language that the actions of the respondents have “violated not only the express provisions of the Constitution” and various other laws but also ignored the law laid down by the court in the Chief Justice Iftikhar Chaudhary case which set out safeguards to protect judges of the Superior Courts. The Order concludes this scathing criticism by stating, “In these circumstances the errors committed by them in the preparing and framing of the reference cannot be termed as mere illegalities. Instead, in the context of Article 209 their errors amount to wanton disregard of the law.”

Why does it matter that this eference was filed by the government? It matters first, because it means the government is expressing its lack of confidence in a judge.

It may seem odd that given the scale and degree of illegalities, and the other circumstances surrounding the reference, the court failed to make a finding of bad faith. The Order considers the submission made on behalf of Isa J. that the real reason behind the reference was his Dharna Judgment. It rejects this submission on the basis that the Asghar Khan decision contained “far stronger observations about our politicians and political system” but failed to draw any adverse reaction from the federal government against any judge.

The judicial courage in the Asghar Khan case was displayed in 2012 in respect of events that took place in the context of the 1990 elections. Action was recommended against long retired officers and certain politicians. The Dharna Judgment was different. It directed the COAS to initiate action against personnel under his command who are found to have violated their oath which prohibits them from engaging in any political activity or from supporting a political party.

The grave illegalities in the reference have been held by the Order to be a result of “careless and casual preparation”. Since Mrs Isa’s ownership of certain properties in London is undisputed, the Order holds that “the source of funds for their purchase and the mode by which these funds were transferred abroad require explanation”. It goes on to state that an “unexplained investment by the spouse of a judge of the Superior Courts, who is a holder of public office, compromises the integrity of the learned judge and ultimately the probity and credibility of the institution which he serves”.

The scope of accountability of public servants (particularly judges) has entered previously unchartered territory. The court has decided that public servants are not insulated from the conduct of their family members. They cannot plead ignorance and have a duty to make reasonable efforts to be informed about the financial interests of their family members. This finding applies to all judges and public servants.

The FBR was entrusted with the responsibility of obtaining an explanation from Mrs Isa. It seems from press reports that the FBR has already expressed its dissatisfaction with Mrs Isa’s explanation and she has expressed dissatisfaction with the FBR’s findings. Her rights of appeal are preserved by the Order.

As for Isa J’s future, the Order leaves matters entirely in the hands of the SJC. The court notes that the SJC could decide to take no action and “file” the FBR report if it finds that it contains no substance. Whatever it decides, it must do so publicly, clearly and expeditiously. For the sake of the credibility of the court there should be no Sword of Damocles left hanging over a future chief justice’s head.

The author is an Advocate of the Supreme Court of  Pakistan.  The author can be reached at

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