- The need for calm in a turbulent case
For the past few weeks, the Supreme Court remains huddled to deliberate upon the constitutional petitions filed by Mr Justice Qazi Faeez Isa as well as multiple bar associations challenging the references filed against the former. The full court headed by Mr Justice Umar Ata Bandial has expressed its willingness to wrap up the matter at the earliest as it involves the apex court itself. Perhaps, they are mindful of the far reaching consequences of whatever decision they reach and its potential repercussions.
Due to the far reaching presence of media nowadays, the entire country is aware of the references filed against Mr Justice Isa before the Supreme Judicial Council. Adjudicating upon a reference by the SJC would have been a routine matter had it not been for the controversial involvement of the federal government and the subsequent allegations by the judge himself.
The Mr Justice Isa case is the biggest test for the Supreme Court in years and all eyes remain on the bench adjudicating it. Let us hope that at the end of the day, the rule of law prevails above all and the sanctity of all institutions, judiciary as well as the establishment, remains protected. We have enough enemies globally and would rather not be fighting amongst ourselves
The general perception being steered by Mr Justice Isa himself is that the references are a counterblast to his judgement rendered in the Faizabad dharna case. Most liberal activists observe that certain quarters are unhappy with the words used therein. The indirect finger is pointed towards the establishment as the latter has been reprimanded by the Judge in his verdict. Apart from the verdict, it is also widely believed that the judge in question is fiercely independent-minded and cannot be influenced in any manner whatsoever. Therefore, according to the petitions filed before the Supreme Court, the references are basically an attempt to muffle dissent and impinge upon the independence of the judiciary.
Though the allegations may not exactly be well founded, they give rise to certain pertinent questions which leaves the Supreme Court bench tiptoeing a fine line between the independence of judiciary and judicial accountability. Where at one hand they are tasked to preserve and protect the sanctity of the judiciary as a whole, on the other they have to ensure that judicial accountability doesn’t get hampered in the process. Naturally, if any other judge is indeed guilty of misconduct, then he or she should be proceeded against with strictly in accordance with law. However, simultaneously, the Supreme Court also has to protect the independence, integrity, impartiality and dignity of the judiciary as a whole. A small toe across the line towards either side threatens to sway away the edifice upon which the judiciary stands today.
Several questions of law continued to be raised as the senior counsel on behalf of Mr Justice Isa continues his arguments before the ten-member Supreme Court bench. According to the contentions made before the bench, it has been alleged that Mr Justice Isa and his family have been illegally spied upon by various agencies. It has also been asserted that confidential information regarding the Judge and his family has been fed to the complainant, one Mr Dogar, who had no other means of obtaining the information used in the complaints leading up to the references before the SJC. While the judiciary may not be immune to accountability in general however, certain safeguards are indeed in place to ensure that no judge is embroiled in any controversy over false and fabricated charges.
Without prejudice, certain points being raised by Mr Muneer Malik, during the course of his arguments, are indeed valid and thought-provoking. If the executive is allowed to snoop around members of the judiciary and investigate Supreme Court judges through the usual channels, then the same would undoubtedly obliterate the concept of the separation of powers of the executive and the judiciary.
At the same time, if false allegations have been made, then the same can be and should be ordinarily refuted through production of cogent evidence. Not only is this a test case for the Supreme Court, but rather the future of the judicial ship remains hanging. The day a member of the highest court of the land is removed from office solely to serve the interest of certain quarters and not because of some actual misconduct, would be a sad and terrifying day in the history of our country. A judge maybe removed for a thousand reasons from his office but the sole immunity that should be present is to secure his ability to express dissent.
The decision of the Supreme Court on these petitions will be historic and indeed be consequential. If the argument of Mr Justice Isa, that the Prime Minister knowingly advised the President to file a false reference against him, carries weight with the Bench, then what would be the effect of such a declaration made by the Supreme Court? Will it not attract Articles 62 & 63 of the Constitution in so far as the parliamentary membership of the Prime Minister is concerned? Similarly, if the allegations are rejected and it is left open to the SJC to deliberate upon the faith of Mr Justice Isa, will an unbiased decision be made or will the SJC express its annoyance over allegations made against its chairman and members?
Every word formulating the basis of the judgement that the Supreme Court will deliver in due course will be meaningful. Whatever decision that the Supreme Court reaches will be criticized by one quarter or the other. If Mr Justice Isa succeeds in getting the references quashed, then the notion of ‘no judicial accountability’ will gain traction and the critics will attack the judiciary for being biased in favour of a brother judge. At the same time, if Mr Justice Isa’s fate is left for the SJC to decide, then the sentiment of serving the interests of hidden powers will gradually rise and might drown the integrity of the apex court in the process.
Nevertheless, it can be said with the utmost certainty that the Mr Justice Isa case is the biggest test for the Supreme Court in years and all eyes remain on the bench adjudicating it. Let us hope that at the end of the day, the rule of law prevails above all and the sanctity of all institutions, judiciary as well as the establishment, remains protected. We have enough enemies globally and would rather not be fighting amongst ourselves.