Rizwan Ghani
IN a unanimous decision, Supreme Court has quashed presidential reference against Justice Isa as mala-fide. The court has finished the show cause notice as non-maintainable. There are two important points in the judgment: separation of husband wife on property as per the Islam but with instructions that family and children will have to be answerable as per the rule of law and accordingly issues instructions to the Tax Commissioner to issue notices to the family within seven days and FBR head to submit a written report duly signed within 75 days (before 100 days). In this way, after MNS case, once again a good precedent has been set in which a case of judge has been treated just like the politician which is a landmark judgment. The court in its judgment has once again protected rights of every citizen. In constitutional democracy no judge, individual or any institution is above the law. And the doors of constitutional forum ie Supreme Judicial Council (SJC) are always open either on its own motion or for anyone with genuine and a bona-fide grievance as per the law against the judge of the Constitutional Court.
The judgment reads that a judge like any other citizen enjoys the inalienable constitutional rights to be treated in accordance with law. These fundamental values are to be protected at all cost in order to uphold the majesty and supremacy of the constitution and to honour the people of Pakistan who have adopted and given to themselves this Constitution. This is a message to the government that SJC is the correct forum for accountability of the judiciary. The court in this way has preserved and asserted the independence of judiciary, given a clear judgment to deal with assets beyond means to help fight corruption and still avoid a mala-fide trap. In June 19 cabinet meeting, PM asked to be briefed about the judgment. It is to be seen if government will go into review or case is dead here. One opinion is that all those who were involved in filing the reference must resign. PM sent the reference to the President who instead of applying his mind acted as rubber stamp. If the decision had come against the judge, he would have been asked to leave. Now the President should resign along with Farogh Naseem and Shahzad Akbar as ‘brains’ behind the ‘bright idea’ of pitching establishment against the judiciary. As if army chief extension case debacle was not enough.
Even the PM cannot pretend that he was not ‘informed’. He was the one who forwarded the reference to the President. This judgment begs answers to some questions. Was reference based on mala-fide intentions? If court explains mala-fide in its detailed judgment towards which Aitzaz Ahsan has pointed in media that it has not been explained then government will be in trouble. So it will be important to see if government will forego review before the detailed judgment as a gesture of truce or after it, which will continue executive, judiciary standoff. It is likely government will not go into review. But if the government will not go into review, it will give the court high moral ground to define mala-fide. So for the government is caught between rock and a hard place: if it goes for review it will be like taking on judiciary and if it doesn’t the bench can define mala-fide as textualists or progressives. The judges will now keep their fingers crossed on government’s decision on review. Who says law is boring and judges can’t have fun.
On the other hand, if money trail is not established within given time frame, it will put pressure on the judge to resign. The bench being cognizant of such a situation has already left a door wide open by saying in the judgment that anyone can approach SJC for justice but it will have to be as per the parameters given in the judgment. The fate of PM’s all dual nationals has been settled in the inadvertent outcome of Isa judgment because they gave up their constitutional rights by swearing allegiance to second citizenship and in the process have not continued to adopt and give to themselves this Constitution. They cannot run with the hare and hunt with the hound. So the judgment is not only a death knell for government’s ‘bright’ legal team (although nationals?) but PM’s army of dual national advisors. The tolling bells could get louder different formulas also. A court in France has punished a relative of Syrian President to 4-year imprisonment for having assets beyond means which will sully opposition’s joy. Finally, it is a historic judgment in which judiciary has strengthened its stature, given a clear law to fight corruption and a uniform yardstick for judges and the politicians alike. It will go a long way in helping the institutions to hold themselves accountable as per rule of law. By refering the family of a sitting Supreme Court judge to the relevant departments has established rule of law which will help end use of assets beyond means to do corruption and avoid accountability. It is hoped that all those having overseas assets will face justice in foreign lands also after France’s example.
—The writer is senior political analyst based in Islamabad.
