- Due process has not been followed
In the week before Eidul Fitr, there popped up a newsbreak on the mini screen, a reference had been filed by the President in the Supreme Judicial Council against Mr Justice Qazi Faez Isa of the Supreme Court. The news was not totally unexpected: before the newsflash, an orchestrated campaign was launched through controlled leaks, implicating him in concealment of foreign assets, in the form of undeclared property in the name of his spouse and children. An impression was created that such assets were acquired with tainted money and entailed money laundering.
Coming in the aftermath of filing of review petitions against his judgment in the Faizabad Dharna case, the revelation was not astounding. Hardly a month before, the PTI and other state institutions, including the intelligence agencies, in unison, castigated the verdict. Strong language was used to deprecate the Author Judge for his audacity to criticise the de jure and de facto power centres. The members of legal fraternity were not amused: acquainted with the background developments and familiar with the character and calibre of Mr Justice Isa, they were indeed dismayed. It is because they knew Mr Justice Isa well: that he belongs to a noble and affluent family, whose character is unassailable and whose integrity is beyond reproach. Equally sceptical of the news story, indeed perturbed, were the informed citizens and intelligentsia, because they knew the Judge by his reputation to be upright, who could call a spade a spade! The nation was bewildered by the news flash and unwilling to give credence to the seemingly cooked up charge.
It is also necessary to avoid the miscarriage of justice at the altar of political expediency. This is needed because the track record of the Council is not so enviable
As revealed in his second letter to the President, prior to his elevation Mr Justice Isa had a successful career and was member of a renowned law firm, earning handsome amount. So much, that at the time of his appointment as chief justice of the Balochistan High Court in 2009, just the income tax deduction from his receivables for the preceding year, was much more than the annual emoluments of the post. Quite naturally, he cannot be suspected to have joined the judiciary for monetary considerations. Again, there is no allegation of financial indiscretion or judicial impropriety against him. The twisting of facts to make the undeclared foreign assets, look like some kind of financial scam, doesn’t appeal. After all, he of all people knows well that merely owning or possessing assets– inland or abroad– is no offence. People, having huge assets in the form of estate, mansion and business/industry, are living comfortable lives. No questions are asked, so long as it is not the product of scam money. So why should he resort to concealment of assets? This remains unanswered by the Government, or its sleuths engaged to collect incriminating material against him. In short, the allegation (as it is made out to be) of financial impropriety doesn’t stick, rather it sounds preposterous. The hush-hush manner in which the material about the foreign assets of his spouse and children was procured and then exploded on the media, reveals an orchestrated strategy. In doing so, caution was thrown out the window. Even the requisite procedural safeguards, available under the law, were ignored. The purpose was to have him coerced into resigning. The strategy failed, because those who contrived it, had little knowledge of the Baloch values: humble, polite but brave and courageous. Thus, when pushed to the wall, they react and strike back. So far from quitting, Justice Isa asked the President to disclose the contents of the purported Reference. It was only then that the Government officially acknowledged sending a Reference against him to the Supreme Judicial Council.
Meanwhile, the Reference were fixed for hearing and notices issued to the Government/Attorney General to appear on Friday. And whereas details of the charge are still shrouded in mystery, the few details already disclosed, speak of a raw deal for Mr Justice Isa. The most elementary and essential procedural safeguards, available under the law, have been denied him. It tantamount to denial of right to access to justice as well as right to fair trial and due process, guaranteed by the Constitution. The specific rights infringed include Article 4, 9, 10, 10A, 18 and 25 of the Constitution.
Fair trial means and includes trial conducted fairly and justly by an independent and impartial court, with all the requisite substantive and procedural safeguards extended to the accused. Ironically, all the legal safeguards, available to citizens under the Income Tax Ordinance 2001, stand denied to him. Section 116 and 116A of the Ordinance, require the Filer to submit wealth statement along with income tax return. It provides for revision of record to rectify/correct a mistake/blunder, if any. The Commissioner is authorised to ask a Filer to submit wealth statement or wealth reconciliation statement, and in case of non-compliance, may initiate proceedings against him. But there is right of appeal to higher fora, including the high court. As regards assets declaration, the liability is strict when the filer is a Benamidar, but not when such assets are purchased by a foreign national from earning abroad. Regrettably, no such clarifications were sought or questions asked by the FBR, and the information/material gathered was placed before the Council as a charge sheet. It was a serious matter, which necessitated deep scrutiny and thorough examination. But seemingly it was not done, thereby attracting the charge of discrimination and exposing the mala fide of the Filing Authority; buffeted by bad publicity showered on him in the Faizabad Dharna case and further strengthened by the malicious campaign launched against him, before and since the filing of Reference. Such anomalies and discriminatory treatment, coupled with the irregularity in procedure, in particular, non-exhaustion of procedural remedies, resulting in denial of fair trial and due process to the Respondent should not escape the attention of the Council. The Reference is filed under Article 209 of the Constitution by the President, but in doing so, he is bound by the advice of the PM. Such advice, as per Article 91, has to come from the Cabinet. Thus, issues like adequacy of material and satisfaction of the relevant authority as to the gravity of charges/grounds of removal, are relevant factors to be considered. The Council is the first and last, indeed only, judicial forum which can seal the fate of a superior court judge. There is no other appellate authority or forum for review/revision. Extreme care therefore is called for, while taking up cases by the Council.
The alleged mala fide intent and discriminatory treatment, together with the denial of legal safeguards to the Respondent, makes it a case for filing a petition in the Supreme Court under Article 184 (3) of the Constitution. Such petition preferably should be filed by Mr Justice Isa, but may also be filed by the Bar or any citizen, for the matter is of public importance. Precedent exists in the form of the Supreme Court judgment in the case of Chief Justice Iftikhar Chaudhry. Such precautionary measure is required to prevent the misuse of the accountability process to target individuals for standing up to the mighty. It is also necessary to avoid the miscarriage of justice at the altar of political expediency. It is needed because the track record of the Council is not so enviable. In its verdict in the case of Justice Shaukat Aziz Siddiqui, it refused to conduct inquiry/investigation, so as to ascertain the truth or otherwise of the charges against him. The accountability of all public functionaries, especially judges, is desirable, but seeking selective accountability of those who enjoy good reputation, stand by the law and are upright, thus, out of step with the powers that be, is to be resisted and guarded against.
