The reference: part II

The dissenting judge speaks not just to the present, but with an eye to the future.

In twin judicial opinions, Justice Mansoor Ali Shah and Justice Baqar have gone further than the majority judgment in highlighting the illegal actions pursued by the federal government in their quest to depose Justice Isa. While covering much of the same ground as the majority, they have recorded for posterity three crucial disagreements: the existence of covert surveillance, the legality of holding a judge accountable for the actions of independent family members, and the decision to ask the FBR to commence an inquiry into the finances of Justice Isa’s family.

To understand the position on covert surveillance, first we need to understand that the right to privacy is a fundamental right guaranteed by our Constitution. Any action taken to interfere with this right must be rooted in strong legal reasoning. Furthermore, in any investigation, those conducting the investigation have to justify how each piece of evidence was collected.

As the dissents demonstrate, the federal government showed a wilful disregard for both of these legal principles.

The properties that the entire case revolves around were situated in the UK. The only way for the government to determine which property was owned by Justice Isa or his family was to give the full address to the UK Land Registry. However, it is a fact that the government did not have this information. The complaint that initiated this entire fiasco never mentioned the complete address of the properties at all. And there was no way to find out who owned what property in the UK by simply putting the owner’s name through the HM Land Registry.

How then did the government know which property was owned by Justice Isa’s wife or children?

In a masterclass in prevarication, the government failed to answer this question in a satisfactory way. Their best answer was that they used a free website called “192.com” which allowed them to input the name of Justice Isa and his family members to find out what property they owned in the UK.

However, contrary to the government’s claim, this website isn’t free to use. It requires a payment to be made before a search result can give full details of a property. Even then, it only shows the address but not the full title of the property.

The details of these properties, owned by private citizens, is protected by the right to privacy. The government therefore needs to justify how they obtained this information. They couldn’t. Despite being asked by the Supreme Court, the government was unable to show any evidence that they had used any web service. Not a single receipt showing payments to 192.com was available either. In short, the government was unable to identify the source of the information that formed the factual foundation of its case.

Even if the government could justify how it obtained this private information, it would still need to show that it had a legal basis for doing so. As both the majority judgment and the dissents point out, 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.

Despite this, the government admitted before the Supreme Court that the ARU had hired a private investigation agency in the UK to obtain information regarding every residence that Justice Isa’s children had resided in the last 10 years. Again, there was no legal authority that the government could point to in justification for this covert surveillance of the family of a judge.

The failure of the government to explain how it obtained knowledge about the property owned by Justice Isa’s family, coupled with its lack of legal authority to investigate him, implies simply that the information against him was obtained through unlawful means in violation of the Constitution’s guarantee of the right to privacy.

Next, comes the question of whether a judge can be held accountable for the conduct of their family members.

The dissenting opinions lay out in detail that there is nothing in the Code of Conduct for judges that makes them liable for the conduct of their family. The underlying test proposed by the dissent is both reasonable and accords with common sense. As Justice Shah states, we need to ask whether “the judicial integrity of a judge has been undermined resulting in lowering the public confidence and trust in the judiciary, thus impairing impartiality and legitimacy of the judicial institution.”

This is the test that the majority judgment of the Supreme Court should have adopted instead of eliminating the distinction between holders of public office and private citizens. If this distinction is not protected, then many other judges may find their family members being tailed by private investigators hired by the government in unconstitutional dragnet searches.

Finally, the Honourable Judges disagree with the majority’s decision directing the FBR to commence an inquiry into the finances of Justice Isa’s wife and children.

The properties in question were acquired in 2004 and 2013. Under the law, there is a five-year limitation period during which an assessment by the FBR into their purchase could be commenced. That period has expired. Meaning that there is currently no legal basis under which the FBR can investigate the properties. However, through its decision, the majority judgment of the Supreme Court has ordered the FBR to do something which it cannot do under the law.

If there is no law through which the FBR can investigate the properties, then there is no law through which the Supreme Court could order them to do so. Under our constitutional system, any action by an executive authority like the FBR has to be justified through a law. The Supreme Court has no constitutional authority to fill gaps in executive authority, however it has done it again. It did the same thing in the case concerning the extension of the COAS tenure when it held that even though there was no legal basis for the extension it was going to validate it till the law was made.

The dissenting opinions in this case must be applauded for their bravery. Not only in calling out the unlawful actions of the government, but for also recording the shortcomings in the judgment of the majority. In the words of Chief Justice Charles Evan Hughes (who Justice Baqar once quoted): “While a dissenting note has no legal force, the purpose of this endeavour is to appeal to the brooding spirit of the law in the hope that what may be dissent today becomes the law tomorrow.”

Published in The Express Tribune, November 10^th, 2020.

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