On Friday, a 10-member bench of the honourable Supreme Court of Pakistan passed its judgment in the Justice Qazi Faez Isa’s case. The 7:3 majority judgment, authored by Justice Umar Ata Bandial, provides the “detailed reasons” behind the honourable Court’s short order in the case, which was passed back in June of this year. As such, while making damning observations about key state functionaries, the directive part of this judgment merely elaborates the ‘judicial reasoning’ behind the Court’s earlier directions: It does not (and could not) go beyond the contours of the short order itself.
The short order, dated June 19, 2020 had “quashed” the “pending” reference against Justice Isa. However, in the same breath, a majority of the bench had directed the “Commissioner of Inland Revenue” to issue appropriate notices “to the spouse and children” of Justice Isa, under the Income Tax Ordinance, 2001 (ITO), requiring them “to offer an explanation” concerning “source of the funds” for their properties. Also, it had ordered Justice Isa’s family members to “furnish their replies” along with “such material and record as is deemed appropriate”. Upon receipt of such information, the Commissioner was required to provide “an opportunity of hearing” to the parties, and thereafter “make an order” in accordance with the relevant provisions of the ITO. For this purpose, the short order had mandated that proceedings before the Commissioner must be completed “within 60 days of the date of receipt of the notices”, and that an order be passed “within 75 days of the said date of receipt”.
Furthermore, per the said short order, “within 7 days” of Commissioner’s order, the Chairman FBR was required to “submit a report (to be personally signed by him)” to the Secretary of SJC, along with “entire record of the said proceedings”. The Secretary would then place such report before the Chairman of SJC (the Chief Justice of Pakistan), who shall “have the report laid before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the Petitioner as the Council may determine.” Pertinently, per the short order of the honourable Court, “receipt of the report”, “laying of it before the Council” and any “action/proceedings” or “orders or directions” passed thereon, shall be deemed to be “in exercise of the suo moto jurisdiction” of the SJC, under Article 209(5) of the Constitution. And that, even if “within 100 days” no report had been received from FBR, the CJP may still direct that the matter be placed before the SJC for “such perusal, consideration, action, order or proceedings”, as the SJC may determine, in exercise of suo moto powers under Article 209(5).
However, three members of the honourable bench (Justice Maqbool Baqar, Justice Mansoor Ali Shah, and Justice Yahya Afridi) had dissented with the majority’s opinion. And of them, Justice Yahya Afridi has authored an incredibly powerful dissent, which is erudite, balanced, and delivered with a kind of poise that rises above the passions and prejudices that have otherwise undermined this important case.
Specifically, Justice Afridi’s dissent only agrees with the majority judgment “to the extent of declaring the Presidential Reference”. Beyond that, he delivers his own judgment on “critical issues” relating to the case, concluding that: 1) the petitions filed by Bar Councils and Bar Associations, fulfil the mandate of Article 184(3), and are thus maintainable; 2) that the President did not form his own “opinion”, in terms of Article 209(5) of the Constitution, regarding “sufficiency” of information warranting the filing of a reference against Justice Isa; 3) that even if the requisite information against Justice Isa has been “obtained unlawfully”, the same would fall within the ambit of “information from any source” that is cognisable under Article 209 of the Constitution; 4) that “the controversy in hand can be resolved ” without “passing a definite finding on the legal status of ARU”, and thus there is no reason to adjudicate the same; 5) that “Income Tax Officials” and other persons within the government had made “unlawful disclosure of confidential information” concerning confidential tax records; 6) that they had “exposed themselves to penal prosecution for commission of offences under Section 189 read with Section 199 and section 216 (1) of the [Income Tax] Ordinance”; and that, consequently, FBR must “proceed under the law, against the Law Minister, the Chairman ARU, the then Chairman, Federal Board of Revenue and all the concerned Income Tax Officers” and submit a report to the honourable Supreme Court “not later than fifteen days from receipt of this Judgment.”
While several aspects of Justice Afridi’s judgment deserve purposeful analysis (which would be beyond the limitations of this article), one important facet, in particular, is interesting: Justice Afridi has held that the Petition filed by Justice Isa—in his personal capacity—is not maintainable in terms of Article 184(3) of the Constitution.
In this regard, Justice Afridi explains that the honourable Court’ jurisdiction, in terms of Article 184(3) “should not be viewed merely as a forum of redress of aggrieved individuals”. Instead, any petition filed under this constitutional ambit must fulfil the mandatory requirements of being an issue of “public importance”, with reference to enforcement of “Fundamental Rights”. As such, per Justice Afridi, the question becomes: “whether a sitting Judge of a constitutional court can file a constitutional petition, which not only relates to the terms and conditions of his service but also affects the terms of the code of conduct that he has sworn to uphold.”
In order to answer this question, Justice Afridi starts with looking into the ‘majesty’ of the judicial oath. Specifically, the constitutional oath administered to a judge includes a requirement to “abide by the code of conduct issued by the Supreme Judicial Council”, which entails that a judge will “endeavour to avoid, as far as possible, either on his behalf or on behalf of others” to be involved “in litigation”. Justice Afridi points out that, by taking this oath, a Judge accepts his “constitutional position with all its trappings”, which includes “limitations” on the ability to enforce Fundamental Rights through the courts. This, according to Justice Afridi, is no different from limitations placed upon other officeholders to invoke the Court’s constitutional jurisdiction, e.g. members of armed “forces”, and those employed in “service of Pakistan”.
Consequently, Justice Afridi points out that a sitting judge must “tread carefully” while exploring the possibility of initiating litigation, so as to “ensure that his actions do not infringe upon the respect and dignity attributable to the esteemed office of the Judge”. In the instant case, per Justice Afridi, “the subject matter of the present litigation, in pith and substance, revolves around allegations of impropriety [against Justice Isa], no matter how baseless it may seem. This being so, seeking to enforce the fundamental rights to challenge the very charges against him to be ultra vires, and that too without withstanding the prescribed enquiry would negate the very spirit of the oath taken by the petitioning Judge.” As such, Justice Afridi concludes that Justice Isa’s petition is “not maintainable” for lacking “one of the essential conditions—enforcement of fundamental rights—for the Supreme Court to invoke its original jurisdiction under Article 184(3)”. Especially when exercising such jurisdiction “would in effect thaw the process of accountability of one holding a public office, be it a Judge of the Supreme Court”.
Accordingly, Justice Afridi holds that the said petition, filed by Justice Isa in his personal capacity, is “bereft of essential constitutional requirements is non-maintainable”, and “thus, must fail.”
This conclusion, which limits the ability of a judge to resort to the Court’s constitutional jurisdiction, in order to avoid recourse to Article 209 of the Constitution, is an important development for our jurisprudence, and may leave a lasting imprint on the essence of judicial accountability in our land.
These are difficult times for our judicio-polity. Such times need intellectual giants, like Justice Afridi, to step forth and bring a tangible measure of impartiality to the deeply partisan arc of our (recent) jurisprudence. In times like these, all of us—who still believe in the sanctity and solemness of our constitutional empire—must celebrate Justice Afridi, and others like him, as a beacon of judicial hope in this land.