Justice Qazi Faez Isa (left) and former law minister Farogh Naseem. PHOTO: FILE
“Keep in mind, one of the elected governments has earlier been removed due to spying on judiciary,” said Justice Maqbool Baqar while addressing the federal government’s counsel Dr Farogh Naseem.
Justice Baqar is part of the 10-judge full court that on Thursday resumed hearing a slew of petitions filed against a presidential reference seeking removal of Justice Qazi Faez Isa.
The PTI led federal government in May last year filed the reference with the Supreme Judicial Council (SJC), alleging that Justice Isa – who is in line to become the chief justice of Pakistan – committed misconduct as he failed to mention his family members’ foreign properties in his wealth statement.
The SJC – the only constitutional forum to hold a superior court judge accountable – started proceedings on basis of the reference and also issued show cause notices to Justice Isa. The judge and a number of other petitioners later challenged the reference and the SJC proceeding in the apex court.
During hearing of the case on Thursday, Justice Baqar reminded the government of the repercussion of surveillance against judges while obliquely alluding to sacking of prime minister Benazir Bhutto’s second government in November 1996.
President Farooq Khan Laghari had dissolved the PPP led government under Article 58 2(b) and accused Benazir government of a number of shortcomings, failures and deviations including spying on judges.
When Benazir challenged the dissolution in the apex court, the defendant presented various records showing that intelligence agencies tapped phones and chambers of many judges.
The SC had later upheld the dissolution and said this one ground of covert surveillance of judiciary was enough for justifying removal of the government.
Benazir’s lawyers tried to argue that the premier had not authorized the bugging and that she did not even know when this espionage took place. The SC had rejected the stance and said since she was the prime minister, the court was bound to assume that the espionage took place on her instruction.
Justice Isa attorney Muneer A Malik has already told the court that the SC judge can offer a sealed affidavit explaining how he knew that the government conducted a surveillance operation to discover his family members’ foreign assets.
Justice Isa in his written submission has said the documents filed by the federal government show the lack of respect they have for the privacy of a judge and his family.
“The federation’s reply itself shows that the Asset Recovery Unit (ARU) hired a private investigation agency in the UK to find out every place that the petitioner’s children had resided in the last 10-years.
“If the federation is willing to pay a private investigation agency to spy on the petitioner, is it farfetched to imagine that they also used state intelligence agencies for such purpose,” he had said.
On Thursday, the full-court– headed by Justice Umar Ata Bandial – directed the government’s counsel to satisfy the court on allegations of Justice Isa that the reference was filed against him with a mala fide intent, and that the government carried out his his surveillance.
Justice Bandial said if the government’s mala fide intention or malice is established then the apex court would quash the SJC proceedings against Justice Isa.
“Since 1960, any act tainted with malice ends jurisdiction. The mala fide intent would also raise question about ulterior motives,” he noted. “What would be value of any material if it is collected through illegal means?” he questioned.
Dr Naseem argued that the petitioner’s entire defence was based on his spouse and children being independents and that he is not bound to disclose their properties.
He argued that the word ‘misconduct’ was not defined in the Constitution or in any relevant documents. Dr Naseem also referred to a 1962 judgment of the Supreme Court which said if there was a violation of a law by a judge it would be misconduct.
He gave example of the Indian apex court, which, he said, has declared that the office of a judge is one of public trust. Even in Pakistan, the office of the judge is of sacred trust in light of Islamic jurisprudence.
The federal lawyer said the relationship of the wife was one of close proximity as she is a partner and therefore the judge is bound to disclose the properties of his wife. The widow of a judge receives pension even when she is financially independent, he said.
Dr Naseem said it was at the discretion of the SJC to state what misconduct is and what is not.
He also gave example of the Panama Papers in which former prime minister Nawaz Sharif had argued that his children were independents and that they should be asked about the purchase of Avenfield properties. Both judges and their wives cannot avail a tax amnesty scheme, he said.
The bench noted that in this case nobody has asked the wife about her properties.
Justice Sajjad Ali Shah noted that even in the National Accountability Bureau (NAB) cases, it is the owner of the property who is first asked to explain the source of income, remarked
Naseem said when disciplinary proceedings are initiated it is the judge who should be asked about the undeclared property first. He also referred to Articles 224, 205 and 63 from which it can be inferred that the judge is accountable for the act of independent wife.
Justice Bandial noted that judges have a constitutional code of conduct and asked how the statutory laws were relevant for judges. The SC later adjourned hearing till today (Friday).
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