The malicious reference against Justice Qazi Faez Isa was a direct assault by the Executive on the independence of the Judiciary. Yet his victory in the Supreme Court has generated a mixed response
Justice Isa’s triumph in the Supreme Court has generated a mixed response. Critics of the decision lament the lack of accountability and say the majority judges have unfairly shielded their colleague. Jubilant supporters are hailing a new messiah. They insist that a crucial blow has been struck against the Establishment and for judicial independence.
The original decision of the court was passed by a ten-member bench. All ten judges agreed the reference against Justice Isa was unlawful. It was unanimously quashed. For three of the judges, that was the end of the matter. Seven of the judges (the original majority) gave further directions to the Federal Board of Revenue to investigate the matter and provide a report to the Supreme Judicial Counsel (SJC). The original majority held that the FBR report was to be considered by the SJC, which would then decide whether to take any further action against the judge. Review petitions were filed against these further directions.
The ten-member bench hearing the review petitions accepted them by a slender majority of six to four and recalled those parts of the order of the original majority that gave further directions. Out of the original majority, two judges changed their mind: Justice Malik and Justice Miankhel. Four judges of the original majority dismissed the review and now stand as minority dissenting judges. The new judge on the bench Justice Amin-ud-Din, who was hearing this matter for the first time, allowed the review. The three minority judges who originally dissented from the original majority maintained their original position in the review. They now stand as part of the majority.
The review petitions in this case were originally assigned to a seven-member bench comprising the original majority. The petitioners objected to this on the basis of a provision in the rules requiring a review to be placed as far as practicable before the same bench that heard the original matter. These objections were upheld in an order passed by Justice Bandial on February 22 (the Bench Order). The Bench Order was passed by a bench comprising six of the seven judges constituting the original majority. All of them agreed that the petitions should be placed before a bench comprising at least ten judges since this was the size of the original bench. Five of these judges held in addition that the chief justice, as master of the roster, can determine the composition of the review bench and may constitute a larger bench for hearing the review. A larger or different bench for a review undermines the finality of Supreme Court decisions and has the impact of converting a review into an appeal or a rehearing.
Two judges, part of the original majority, have acknowledged they made a mistake. There is no shame in that.
The Bench Order makes observations regarding the role of minority judges in the context of a review of a majority judgment. It notes that these judges during the review “ought to show maximum restraint and maintain judicial dignity and quietude, particularly when they had already expressed an opposite view in the original matter”. Justice Malik has authored a note which disagrees with this observation in the Bench Order. There would appear to be no purpose in including minority judges in the review bench if they are simply to sit as passive observers. A majority order is an order of the entire bench even if the bench is split. It can be reviewed by both majority and minority judges. That is what happened in this case.
Since the additional directions in the order of the original majority have been recalled, all actions and proceedings “in pursuance” of these directions have been held to be unlawful. No future or other action has been stopped or prohibited. This is no judicial NRO. The short order in the review does not grant judicial immunity from prosecution nor does it stop action being taken against Justice Isa or his spouse (or any other judge) for violation of any tax or other law.
The law enunciated in this case and in the Iftikhar Chaudhary case establishes that any presidential reference against a judge before the SJC is subject to judicial review by the Supreme Court. If found to be based on malice in law or fact, it can be quashed by the Supreme Court. As a result, a reference will only end up being prosecuted before and decided by the SJC if the Supreme Court conducts an initial evaluation and holds it lawful. This does not appear to be the constitutional intent. Article 209 contemplates that the SJC is the sole body empowered to decide whether allegations of misconduct against judges have substance. By bypassing the constitutional forum prescribed for judicial accountability, judges have left themselves open to criticism. They need to consider the impact this jurisprudence has on their credibility. Where the Supreme Court quashes a reference pending before the SJC, an impression is created that accountability was evaded on the basis of a technicality rather than a decision on the merits.
This was a case where a malicious reference filed by the president sought to remove an independent judge from office. He was targeted not because of any possible misconduct but because of his decisions. It was a direct assault by the Executive on one of the basic features of our constitution – the independence of the Judiciary. The original majority decision was troubling. It impacted parties not before the court (Mrs Isa) and gave a direction to an independent constitutional body (the SJC) to consider a report. Two judges, part of the original majority, have acknowledged they made a mistake. There is no shame in that.
In February 2022, Justice Bandial is scheduled to become chief justice. In September 2023, he is to be succeeded by Justice Isa. The media reported robust exchanges between the two during the course of these hearings. Both quote from the hadith and Holy Quran in their decisions. They will find comfort in the hadith that ikhtilaf (difference of opinion) in the community is a sign of divine favour. The real test for the court and its members starts now.
The author is an Advocate of the Supreme Court of Pakistan.