In a rare development, the Supreme Court -- with a majority of 6 to 4 -- has allowed the review petitions filed against its June 19, 2020 order for the Federal Board of Revenue (FBR) to conduct an inquiry into the foreign properties of the family members of apex court judge Qazi Faez Isa.
With this verdict, Justice Isa – who is in line to become the chief justice of Pakistan – is vindicated of the allegations leveled in a June 2020 presidential reference that claimed that the apex court judge had committed misconduct by not disclosing his family members foreign assets in his wealth statement.
"By majority of six to four [Justice Umar Ata Bandial, Justice Sajad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed dissenting], these review petitions, except as mentioned below, are allowed," said the order, announced by head of a 10-judge bench Umar Ata Bandial on Monday.
Justice Yahya Afridi dismissed the review petition filed by Justice Isa but allowed the other review petitions filed by Justice Isa’s wife Sarina Isa and superior bars against June 19 order.
In their short order, Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Mazhar Alam Miankhel, Justice Syed Mansoor Ali Shah and Justice Aminuddin Khan allowed the petitions.
"For the reasons to be recorded later, captioned review petitions are allowed and the directions contained in paras 4 to 11 of the impugned short order dated 19.06.2020 passed in constitutional petition No.17/2019 and other connected matters, along with supporting detailed reasons given in the majority judgment of the same date, are recalled and set-aside.
"All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order dated 19.6.2020 and the detailed reasons thereof, are declared to be illegal and without any legal effect.
“Resultantly, any such proceedings, actions, orders or reports cannot be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council (SJC)," they noted.
Justice Afridi stated that “all review petitions except CRP No 296 of 2020, are allowed and the directions contained in paragraphs No 4 to 11 of the order dated 19.06.2020 and detail judgment dated 23.10.2020 passed in constitution petition No 17 of 2019 and other connected petitions are recalled.”
In his additional note, the SC judge held that consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions are declared to be of no legal effect and/or consequences.
However, the minority judges –Justice Bandial, Justice Shah, Justice Akhtar and Justice Ahmed – held that “for reasons to be recorded later, the review petitions are dismissed”.
Out of the six majority judges, Justice Manzoor Ahmad Malik and Justice Mazhar Alam Miankhel have reviewed their opinion as they were among those judges who in June 19, 2020 verdict ordered the FBR to conduct an inquiry into the Isa family’s assets.
Justice Aminuddin Khan, who allowed the petitions, was not a part of the earlier 10-judge bench that had heard the constitutional petitions against the presidential reference. Justice Khan was included in the bench after the retirement of Justice Faisal Arab.
Three judges – Justice Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi - have maintained their opinions as they were the judges who had written the minority order on June 19, 2020 and opposed the majority verdict to refer the matter to the FBR.
When the order was announced, Justice Isa was present in the courtroom along with his family members. He thanked God for the victory. Lawyers and media persons also congratulated him.
Emotional scenes were witnessed in the courtroom with tears of happiness gleaming in the eyes of Justice Isa’s wife Sarina Isa and daughter Sahar Isa.
Leaders of bars including Hamid Khan, Syed Qalb-i-Hassan, Pakistan Bar Council (PBC) Vice Chairman Khushdil Khan and Sheikh Ahsanuddin were also present in the courtroom.
The PBC vice chairman later appreciated the apex court’s majority order.
“This judgment would help to stop onslaughts of the executive or other authorities against independent judges in future. The Supreme Court has proved that the judiciary is independent.
“This judgment would strengthen the principle of supremacy of the Constitution, the rule of law and the independence of the judiciary. The whole legal community has welcomed this judgment and it is our collective success," said a PBC statement.
PBC former vice chairman Akhtar Hussain demanded an inquiry to determine as to which government functionaries were responsible for filing a “mala fide reference”.
Sindh High Court Bar (SHCB) Association President Salahuddin Ahmed said the majority judgment vindicates the stance of Justice Isa and Sarina Isa and all bar associations in Pakistan.
“[We] had argued that the entire case against Justice Isa was a mala fide conspiracy to punish him for the Faizabad dharna judgment in which he exposed elements of the deep state and designed to intimidate and subjugate the judiciary.
"Clearly, the government received terrible advice in pursuing this matter and, at very minimum, Law Minister Farogh Naseem and
SAPM Mirza Shehzad Akbar should accept the responsibility and tender their resignations,” said the SHCB official in a statement.He hoped that regardless of what has gone by, all the judges including Justice Isa will be able to put aside their differences and come together to repair and restore the SC’s prestige and moral authority.
“Going forward, the SC must present a united face to those who would seek to undermine its independence without harboring any illusions about the identity of such people," says SHCBA president.
The federal government did not give its reaction to the verdict till filing of the report.
Senior lawyers believe that the real test of Justice Isa will start and all eyes will be on him to see how he will proceed in matters related to the PTI government. A government functionary hoped that Justice Isa while deciding cases would have no personal grudge against any executive authority.
Barrister Asad Rahim said the last high-profile review that succeeded was in the houbara bustard case, where Justice Jawwad S Khawaja's decision was reversed, and in which Justice Isa was in the minority.
“But there is no parallel for a 10-member bench going the other way in a review. These are unprecedented events at the Supreme Court,” he added.
Earlier during the hearing, Justice Isa accused Justice Bandial that he is violating the code of conduct by introducing fresh material against him.
The petitioner judge asked Justice Bandial if he wanted to become the complainant. “You are putting your words in his (additional attorney general) mouth,” Justice Isa said.
Even Sarina Isa said that if Justice Bandial and Justice Munib Akhtar are keen on judges’ accountability then they should make public their own and their family members assets on the Supreme Court website.