–SC judge says if institutions act beyond their limits it leads to violation of fundamental rights, sovereignty
–Attributes fall of Dhaka to undermining of democratic rule of law by military dictators
KARACHI: Supreme Court (SC) Justice Qazi Faez Isa on Saturday said it was judiciary’s responsibility to put an end to contraventions of the constitution, as it has the authority to stop “an individual or institution in the event they transgress the fundamental rights accorded to them”.
The judge made these comments during a lecture at Karachi’s Institute of Business Administration (IBA) where he was invited to speak on ‘Law, Judicial Interventions and Social Change: with a special focus on Labour Law’.
The SC judge is facing currently a misconduct reference in the Supreme Court that was filed by the president over “concealment of assets”.
The reference accuses Justice Isa of concealing his properties in the United Kingdom allegedly held in the name of his wife and children.
However, the SJC proceedings were suspended after several constitutional petitions challenging the reference were filed in the top court. A 10-member bench will take up the case on Sept 24.
Like many observers, Justice Isa also considers the reference against him an attack on the independence of judiciary. The judge made headlines for criticising state institutions for transgressing their limits in the verdict pertaining to Faizabad sit-in.
“The foundation of the Constitution of Pakistan rests on three pillars. The first is the parliament which is responsible for legislation. The second is the executive which enacts the legislation. The third is the judiciary which interprets the constitution and law and ensures that every individual and institution operates from within the scope of their authority,” he said.
For Pakistan to be strong, all these democratic principles must be adhered to, he remarked. Quoting from history, he said if institutions act beyond their limits, in addition to the violation of fundamental rights, country’s sovereignty is also undermined.
“We secured independence for a region which was based on two provinces: East Pakistan and West Pakistan.
“When one man’s dictatorship was in place and martial law had been instituted — first in General Ayub Khan’s time and then in General Yahya Khan’s tenure — the democratic rule of law had been sidelined and resultantly, we lost half of Pakistan.
“When the democratic system is weakened within a country and the voice of one man drowns out the voices of others, then the enemy takes advantage of this,” he said, adding that the same thing happened in 1971.
“Thousands of military soldiers and officers were unable to do anything to save the country from breaking apart. The objectives resolution (the preface to the Constitution) had very rightly laid emphasis on democracy two decades prior for this very reason,” Justice Isa emphasised.
Justice Isa then went on to ask whether Pakistan had learnt anything from history. Speaking about the fall of Dhaka, he said Justice Hamoodur Rehman on Zulfiqar Ali Bhutto’s instructions to unearth the reasons behind such a loss has not been published even after 47 years.
“People were not made aware of the reasons that lead to this incident,” he said, adding that “institutions and countries are strengthened only when they learn from their mistakes”.
He said those who overlook transgressions or hide the truth, they don’t learn from their mistakes and they cannot even lead institutions towards a position of strength.
During the address, the SC judge said even the judiciary cannot act beyond its mandate.
He gave an example of former chief justice Saqib Nisar, wherein the then-top judge gave a popular verdict that hurt the economy.
“The federation and governments of all four provinces levied a tax on mobile phones. The federation placed additional income tax and excise duty, whereas the provinces charged a sales tax on services.
“Based on a written, anonymous complaint, the Supreme Court suspended six different taxes invoking Article 184(3). But when the final judgement was issued, it said that the order was not justified for the placement of such restrictions because taxes do not form part of fundamental rights and so their levying or not cannot be deliberated upon by the Supreme Court.” The decision to suspend the taxes cost the national exchequer at least Rs100bn, he added.
It may be relevant to mention here that a decision by former chief justice Iftikhar Chaudhry, who was also known for his judicial activism, to cancel a foreign company’s contract in Reko Diq case cost the country over $5bn in settlement.
The International Centre for Settle¬ment of Investment Disp¬utes (ICSID), one of the five organisations of the World Bank Group, had announced a huge award of $5.976 billion against Pakistan in the Reko Diq case.
