One year on, Justice Isa reference still undecided

Fate of case depends on role of senior judges and seriousness of establishment in pursuing case

ISLAMABAD: Despite passage of one year, the fate of a presidential reference filed against Supreme Court judge Qazi Faez Isa still hangs in the balance.

PTI led federal government on May 23, 2019 moved the Supreme Judicial Council (SJC) – the forum that can hold superior court judges accountable – against Justice Isa and Sindh High Court judge K K Agha over non-disclosure of their families foreign assets in their wealth statements.

The SJC under the chairmanship of former chief justice of Pakistan Asif Saeed Khosa started swift proceedings on basis of the reference and even issued show cause notices to the judges after declaring their preliminary written replies as unsatisfactory.

However, the legal fraternity strongly reacted to the reference and both the rival groups of lawyers – Asma Jahangir group and Hamid Khan group –united against the government’s move.

The Pakistan Bar Council (PBC) – the apex regularity body of lawyers – also started arranging conventions and protests against the reference all over the country. Lawyers belonging to small provinces started to lead the campaign against the presidential reference.

Despite distributing millions of rupees among bars, the Federal Minister for Law Dr Farogh Naseem could not get support of the majority of lawyers for reference.

A number of senior lawyers described the reference as an attack on independent judges by the security establishment. They said the bar is the only institution which could hold judiciary accountable.

One section of lawyers even raised doubts about role of a few judges against Justice Isa.

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Challenging the reference in the apex court under Article 184 (3), Justice Isa also questioned role of the SJC led by former chief justice Khosa.

Justice Isa had not endorsed Justice Khosa’s findings regarding reopening of Hudabiya case against Sharif family while hearing the National Accountability Bureau appeal.

SC judge in his petition claimed that the SJC’s role in his case was biased. Now two SJC members – Justice Khosa and Justice Sheikh Azmat – have retired.

Following Justice Isa, superior bars also moved against presidential reference in the apex court.

In October last year, a 10-member full court led by Justice Umar Ata Bandial resumed hearing of case. On the request of Justice Isa, two SC judges namely Justice Ijazul Ahsan and Justice Sardar Tariq Masood recused themselves from hearing his case.

The SC judge's legal team led by renowned lawyer Muneer A Malik and comprising Babar Sattar and Salahuddin Ahmed successfully pleaded the case.

Since October 2019, the full court has remained visibly divided on different legal points, with a few judges questioning maintainability of the petition in view of Article 211 of the Constitution.

A few members are expressing concern over the manner in which the material for filing the reference was collected by the government authorities and the legal status of an Assets Recovery Units (ARU).

The bench also expressed concern over the allegations about surveillance of judges and their families.

Hearing of the presidential reference took a new turn after the former attorney general for Pakistan Anwar Mansoor Khan leveled allegations against some members of the Supreme Court bench hearing the petitions in the month of February.

He had to tender his resignation from the coveted post over his contentious remarks that implied that some members of the bench were “privy” to the petition filed by the judge.

With the unceremonious departure of Mansoor, superior bar associations intensified their efforts aimed at forcing the government to remove Federal Minister for Law Farogh Naseem.

They said his stay in office would affect the remaining course of hearing in the presidential reference.

A contempt petition was also filed against the law minister regarding his alleged involvement in maligning the SC judges together with former AGP Anwar Mansoor Khan.

New AGP Khalid Javed Khan recused himself from defend the presidential reference.

However, on the last date of hearing, Justice Umar Ata Bandial had told the new AGP that the court expected that he would apply his mind to the case.

According to sources, when the full court will resume hearing, Minister for Law Dr Farogh Naseem will plead the presidential reference in the apex court.

Sources in PTI revealed to The Express Tribune that one section within government – even federal ministers – are not in favour to plead reference against Justice Isa.

Despite support of one section with PTI, fate of Justice Isa case depends on two factors – role of senior judges and seriousness of the security establishment in pursuing the reference.