The reference

When lawyers marched across the nation in the wake of Musharraf’s actions against Iftikhar Chaudhry, they weren’t doing it for a person. They were doing it for the protection of an institution that bears the scars of repeated executive influence throughout its history.

Judicial independence is essential for the functioning of a constitutional democracy. So is judicial accountability. No one should be above the law. This does not mean that the executive branch can be able to throw spurious allegations against a judge in the hope that something will happen.

Instead, a judicial reference should be filed only when there is a strong basis for saying that a judge was involved in misconduct that would prejudice their ability to act as an impartial adjudicator, or, would bring the institution of the judiciary into disrepute.

Justice Isa — according to the Supreme Court — committed no act that would amount to misconduct. The judgment clarifies that the President, Prime Minister, and Law Minister had no basis in law or fact to justify letting the genie out of the bottle.

Under the law, the President, on the advice of the Prime Minister and his Cabinet, must base his opinion for proceedings against a judge on strong evidence of misconduct. This safeguard exists to protect the judiciary against a flood of baseless allegations. In this case, the Supreme Court found that the reference was based on arbitrary and presumptuous grounds.

The case against Justice Isa was that he had failed to declare assets in the UK owned by his wife and adult children. The federal government claimed this was a violation of Section 116 of the Income Tax Ordinance and justified filing of a reference. The court disagreed and found that the federal government had failed to abide by the law.

First, neither the Justice nor his wife had ever received a notice to explain the source of funds or ownership of the properties. The absence of this point of view meant there wasn’t enough information available to the federal government to determine whether any violation of law had occurred. No executive authority can make a determination of guilt without granting an opportunity to the accused to defend themselves.

Second, the federal government made allegations under the Foreign Exchange Regulation Act, and the Anti-Money Laundering Act, despite the fact that the basic legal preconditions under both these statutes had not even been remotely satisfied on the facts.

Third, the entire reference was based on the assumption that Section 116 imposes a duty on a taxpayer to disclose the assets of their financially independent family members. However, neither the text of Section 116 nor any precedent seems to support this interpretation of the federal government. As the Supreme Court observed: the lack of any legal authority for this novel view of Section 116 should have cautioned the federal government — it didn’t.

Finally, before an investigation can be made against a Supreme Court judge it must be authorised by the President. No such authorisation had been obtained in this case.

These facts show the inherent arbitrariness present in how the reference was filed. They are an indictment against the trifecta of the President, the Prime Minister, and the Law Minister.

The question remains: why did the federal government tie itself in such knots to file a reference against a judge who by all accounts is a man of integrity? Justice Isa in his response to the reference proposed one motive: his judgment regarding the Faizabad Dharna.

To be sure, the Supreme Court dismissed this motivation due to lack of evidence. However, to label this reference being filed in the aftermath of the Faizabad judgment as coincidence would be ignorant of this nation’s history. It is understandable that the Supreme Court does not give any findings on this point — it is not a legal argument after all. But those who have studied this nation’s history, observed its political climate, and read the Faizabad judgment will be compelled to call a spade a spade.

There is one aspect of the Supreme Court judgment that is problematic: it concluded that the reference had to be dismissed against Justice Isa, but also directed the FBR to commence an inquiry into the finances of his wife and children, prepare a report, and submit it to the Supreme Court. The court reserved its right to re-initiate proceedings against Justice Isa on the basis of FBR’s report.

This makes little sense. The Supreme Court had to decide whether a reference against Justice Isa was legally valid. If the answer to this is ‘no’, that is the end of the Supreme Court’s involvement in the matter. If the FBR wishes to investigate his wife and children — who are private citizens — it is free to do so. Why has the Supreme Court taken it upon itself to do the FBR’s job?

Article 209 of the Constitution states that the Supreme Judicial Council can investigate judges for misconduct — not family members. Yet, in its judgment, the Supreme Court holds that a judge can be held responsible for misconduct for the actions of their family members. By doing this, the court blurs the line between holders of public office and private citizens. Why should a judge be liable for misconduct because of the independent actions of their children or spouse? This would only make sense if they committed an act that would make it impossible for a judge to exercise his functions fairly — but the Supreme Court appears to be setting a higher standard for itself. Won’t this mean that the family members of judges will now unwittingly find themselves in the spotlight? Their actions monitored for anything that could be used against a judge and then the dirty laundry blared before the public the way it was done in Justice Isa’s case.

Perhaps the way to explain this parting gift from the court is to acknowledge that the judiciary might have become uncomfortable about how its order would be perceived by the public. The Supreme Court has enjoyed being popular with the people through its suo motu actions and dethroning of politicians. It has thrown its hat so vehemently in favour of strong accountability of politicians that the optics of letting one of their own off the hook may raise questions. The craving for populist appeal seems to have resulted in the judges wanting to show that they are willing to hold themselves to an exceptionally high standard.

Published in The Express Tribune, October 27^th, 2020.

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