In 2019, reports began circulating regarding references being filed against Supreme Court judges — which were confirmed when Justice Qazi Faez Isa approached President Arif Alvi and complained that discriminating leaks to the media amount to his character assassination, so risk the right to due process and fair trial.
Justice Isa in his letter to the president said he would be compelled if the former could allow him to know if it was correct that a reference had been filed against him under Article 209 of the Constitution in the Supreme Judicial Council (SJC).
Campaign against Justice Isa
It is believed that the campaign against Justice Isa started on 6th Feb 2019 after he authored a strongly worded ruling in a case relating to the Nov 2017 Faizabad sit-in by the recently banned Tehreek-i-Labbaik Pakistan (TLP), directing the chiefs of the army, navy, air force and the defence ministry to penalize the personnel under their command found to have violated their oath.
In August 2016, a powerful explosion had occurred in Quetta which several prominent lawyers killed. Justice Isa, who headed one commission to investigate the blast, in his report passed severe strictures against the Interior Ministry and the ISI for not taking action against terror organizations openly operating in Pakistan.
Later, the Supreme Judicial Council had issued a notice to the federal government through the attorney general regarding references filed against Isa and Justice Karim Khan Agha of the Sindh High Court.
The Supreme Judicial Council in the references accused the two judges of obscuring their assets and suggested action against them under Article 209 of the Constitution.
Justice Isa’s response
Afterward, in a letter which legal experts believed was a type of a response to allegations being leveled against Justice Isa for keeping three properties in London, Isa said that he might have endured the inquisition tactics employed against him and his family.
The judge would not authorize this to happen and, as per his constitutional oath, would conserve, protect and defend the Constitution, Justice Isa said in his letter to president Alvi. Regarding the allegation about violating Section 116 (1), (b) of the Income Tax Ordinance 2001, Justice Isa said he had not received any notice from the tax authority.
Isa said his children are not minors nor have they been so for quite a while. He said neither his spouse nor his children are his dependents. Section 116 (1) (b) of the Income Tax Ordinance 2001 is not a penal provision, stated the letter written by Justice Isa.
The judge told President Alvi that he had been spitefully maligned by half-truth by the members of the government, which was totally upsetting for his family and himself.
Justice Isa challenged the reference
Justice Isa through a set of petitions challenged the presidential reference in the Supreme Court and request that a full bench be constituted, which was accepted by the then CJP Asif Saeed Khosa.
On June 19 — almost a year after the presidential reference was filed — the Supreme Court threw out the reference against the judge, declaring it illogical. The top court, accepting Justice Isa’s petitions seeking the reference’s the sack, also withdrew a showcause notice issued to him.
SC stops all actions against Justice Isa, family
On 26 April 2021, the Supreme Court accepted identical appeals challenging its earlier order of 19 June 2019 referring the matter to the FBR with a direction to start tax proceedings against the spouse and children of Justice Isa.
A ten-member full-court bench headed by Justice Umar Ata Bandial heard the case of Justice Isa in the apex court on Monday and handed a split 6-4 verdict.
The Supreme Court had issued the detailed verdict in Justice Qazi Faez Isa’s case and declared a presidential reference sent against him as unconstitutional. The detailed verdict released by the apex court nullified the presidential reference against Justice Isa and termed the reference as a violation of the law and the constitution.
The judgment stated that the presidential reference filed against Justice Isa was in violation of the law and the Constitution. The worthy President grossly failed to exercise his discretion as mandated under the Constitution and, thus, the entire process built thereon leading to the filing of the Reference was in violation of the law and the Constitution, the verdict read.
It said there was no evidence that Justice Isa had violated the Foreign Exchange Regulation Act and even the relevant provisions from the said law were not specified in the Reference.
According to the judgment, the court’s decision to direct the Federal Board of Revenue to commence proceedings against Sarina Isa and her children was based on two ground:
To establish that Judges of the Superior Court are answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution; and to honor the petitioner’s plea that the allegation of the absence of a source of funds and money laundering must be first put to Sarina Isa, who is an independent taxpayer.
Judicial autocracy is a need for the hour
Many believe that the real reason for filing reference against Isa is that in two cases, Faizabad sit-in by the recently banned TLP and report on Quetta blast in August 2016, he has not only pulled up the military establishment but has also asked it to remain within its constitutional confines.
The accountability of Judges is and shall remain the crucial lifeblood for a democratically vibrant society. Definitely, indiscriminate and transparent accountability of Judges would further bolster the independence of the judiciary, boast public trust, and thus, promote the rule of law in our country and to consider if not would be to accede to judicial autocracy.