upreme Court Justice Mansoor Ali Shah and Justice Maqbool Baqar have followed Justice Yahya Khan Afridi in forcefully dissenting with important elements of the majority judgment of the 10 member Supreme Court bench headed by Justice Umar Ata Bandial in the Presidential Reference against Justice Qazi Faez Isa, a fellow Supreme Court judge. Although the majority decision had quashed the Presidential Reference against Justice Isa for “misconduct” requiring a sacking, it had kept the original charge of non-disclosure of his wife’s assets against Justice Isa alive pending a final decision by the Supreme Judicial Council on a report by the FBR relating to the family’s income and assets. The majority judgment had also criticized the conduct and actions of President Arif Alvi, Law Minister Farogh Naseem, Attorney General Mansoor Khan and Assets Recovery Unit head Shahzad Akbar but without attributing any malice to their actions or sanctioning any penalties against them. The dissenting voices have now strongly held otherwise.
The allegations against Justice Isa were, according to Justice Baqar, “wholly unfounded, baseless, frivolous, misconceived and mala fide” … the [Presidential] reference was “a product of animosity, malice”… and “streams from the ill-will harboured by some functionaries of the executive”… which “misused government departments and resources in [an] unconstitutional and unlawful manner”… in “their desire to remove the petitioner [QFI] from his office whom they perceived as an obstacle in their riding this country roughshod and also to overawe the other judges of the superior courts … into subjugation”. Justice Shah added that “the petitioner judge [QFI] was deliberately targeted … the vengeance and resentment against him is more than visible”… the complaint is “vague” and “bogus”… before an “incompetent authority” [ARU] … the evidence was “illegally collected”. The two judges called the President and Prime Minister “rubber stamps”. Justice Shah also directed the concerned authorities to initiate criminal and disciplinary proceedings against the Chairman, Legal Experts and members of the ARU, and defaulting officials of NADRA and FBR for their illegal acts under the IFTA, ITO and NADRA Ordinance 2000.
It is rare in the annals of judicial history for a President, Prime Minister and heads of state institutions to be so brutally indicted. But it is common for them to get away scot-free. It now remains to be seen whether the SJC will have the courage of its convictions to defend the honour and integrity of not just a fellow judge but of the august institution of justice that it represents.
That’s not all. The SC is now being pushed into the eye of a more fearsome storm. This refers to the predicted last-ditch clash between the Government-Establishment and Pakistan Democratic Movement in the next two months. The PDM is doggedly on the path of mass protest culminating in a long march to besiege Islamabad. But the former is determined to leash the latter by all means. Violence, accidental or premeditated, cannot be ruled out, and writs and FIRs are bound to fly. More ominously, if the PDM decides to resign en masse from the Senate and National Assembly and provincial assemblies, the Senate elections in March will have to be postponed and by-elections on scores of NA and PA seats held, raising constitutional issues about the status of non-functioning parliaments for the SC to adjudge.
The role of the Bar in coming months will also be important. There is no doubt that its weight has been solidly behind Qazi Faez Isa so far. But one may expect more positive activism from the SCBA following the recent success of upright and independent minded lawyers Latif Afridi and Ahmed Shahzad Rana in its elections. The newly elected President and Secretary are both solidly pro-democracy and pro-rule-of-law figures who won’t be pushovers for the Government-Establishment.
The law, judges and justice are also likely to figure in another case of high political significance. Nawaz Sharif’s acquittal in the Avenfield case and conviction in the Al-Azizia Steel Mills case are winding their way to the Supreme Court. In both cases, accountability Court judge Arshad Malik has since been thoroughly discredited by an incriminating video. If the conviction is overturned, the PDM’s narrative will get a fillip. The government’s attempt to extradite Mr Sharif will also face serious hurdles if he opts for political asylum on grounds of political victimization and persecution at the hands of the Government-Establishment, citing Arshad Malik’s videos as solid evidence in support of his claim. Indeed, if a British judge were to lend credence to subversion of justice by judge Arshad Malik and subsequent high court judgments, the cases against Mr Sharif in Pakistan would be seriously undermined. We are also informed that there is another video, as yet undisclosed, that may have a negative bearing on the conduct of judges and state of law and justice in Pakistan. The NAB chairman, a retired SC judge, is already under a cloud.
When judges bend the canons of law to serve the demands of naked and brutal politics, they do a great disservice to notions of trust and justice that underpin the modern nation-state.