Being righteous and upright becomes challenging when institutions are not free. In May 2019, the presidential reference was sent to the Supreme Judicial Council, in which Justice Faez Isa was accused of misconduct for not declaring the foreign properties of his wife and children. President sought action against the honorable Justice under Article 209 of the constitution. Article 209(6) empowers the Supreme Judicial Council to recommend the removal of incapable judge or removal of judge due to misconduct. Presidential reference witnessed criticism by different law-related people and institutions.

In May 2019, Zahid F Ebrahim resigned as additional attorney general and termed the reference as “reckless bid to tarnish the reputation of independent people and to browbeat the judiciary”. Sindh High Court referred it as an attempt to undermine the independence of judiciary. Furthermore, Attorney General Anwar Masood Khan resigned following the demand by Pakistan Bar Council due to his derogatory remarks against the full bench hearing in the case of Justice Isa. Then, Barrister Khalid Javed Khan, the newly appointed attorney general recused himself from presenting the government against the Justice Isa. Subsequently on June 1, 2020, Farogh Naseem the then law minister resigned to take part in judicial fight against justice Isa.

On September 25, 2019, Supreme Court accepted the petition of Justice Isa against the presidential reference. A 10 member bench headed by Justice Umar Ata Bandial heard the petition. The information and evidences against Justice Isa were collected by ARU (Asset Recovery Unit) worked under the supervision of government’s hatchet man Shezad Akbar. It is strongly argued that ARU doesn’t have the power to collect evidences against a judge as Babar Sattar maintained that “collection of evidences by the ARU was not done under any authorization”. Secondly, the ARU is a specialized body formed by the PTI to retrieve the ill-gotten money stashed abroad, it further adds to suspicion. The dubious role of ARU to gather information makes the government’s stance weak. 

Justice Isa challenged the reference and termed it as mala-fide on the part of government. Secondly, he said that he cannot be accountable for the property of wife acquired through independent means and it is more of an issue of tax than misconduct. Thirdly, he said that the Article 116 (b) of the income tax ordinance 2001 is not applicable to independent persons and it is falsely interpreted by the government against my wife and children. Fourthly, he maintained that government agencies including the FIA secretly obtained information without taking the petitioner and his family in confidence; it is also violation of Article 4 and 14 of the Constitution. After a six months long hearing, the 10-member bench issued the verdict and quashed the malicious reference. Seven out of ten members referred the matter to Federal Board of Revenue (FBR). Interestingly, neither majority nor minority has mentioned any reason of setting aside the reference and it is hoped, a detailed judgment would present a valid reason. 

Following the short order by SJC, two developments have surfaced. First, the government has commenced struggle to remove two sections of Income Tax Ordinance 2001 which are stumbling blocks in its way to strengthen grip over Justice Isa. While hearing, Justice Isa had contended that his and her wife’s tax records were examined by unauthorized functionaries other than FBR. That was a violation of Sections 198 and 216 of 2001 ordinance. A prominent lawyer and analyst Babar Sattar maintains that “according to the section 216(p) of the Income Tax ordinance 2001, no authority or court including SJC can ask for information akin to tax returns or wealth statement of Justice Isa’s wife especially when she was not a public servant”. Similarly, Section 198 directs that in case of disclosing information, the discloser can face up to one year jail term and a hefty fine of Rs500,000. Now, government is planning to get removal of these sections for clearing their way.

Second development is that Supreme Court Bar Association (SCBA) and Pakistan Bar Council have filed review petition in Justice Isa case. SCBA has questioned the SJC’s order to refer the matter to FBR. In par 9 of the short order, SJC directs FBR to submit inquiry report in 7 days.  According to lawyers, referring matter to FBR has provided ruling elite with opportunity to influence the inquiry. In this grim situation, when an honorable judge is going through a tough situation the unity by law fraternity is praise-worthy.

Justice Isa’s judgment in Faizabad Dharna Case is deemed as a raison d’eter behind the Presidential reference against him. Interestingly, Faizabad Dharna case is not the only example of Justice Isa’s boldness. In case of Quetta terrorist attacks on lawyers in 2016, Justice Isa was a member of Supreme Court commission. Zahid Hussain in his article “justice on trial” mentions that in that commission, “Justice Isa castigated the security agencies and Chaudry Nisar for soft-peddling on outlawed terrorist groups”. Another palpable thing which is irking the ruling elite is that justice Isa is in line to become the Chief Justice in 2023. If he becomes chief justice, ruling elite will have to face difficulty in performing many activities. It seems that ruling elite will not leave any stone unturned in shrinking the room of possibilities for Justice Isa’s appointment as Chief Justice. Ostensibly, a contradictory situation has emerged in which law is trying to save Justice Isa but politics is pushing him against the wall.