–Court tells Dr Naseem a prior democratically elected government had been sent packing on charges of surveillance of judges
As the 10-member full bench of the Supreme Court (SC) heard Justice Qazi Faez Isa’s petition against the federal government’s reference against him, the Dr Farogh Naseem, the Centre’s counsel, informed the court that the word “misconduct” is not defined in the Constitution of Pakistan or relevant documents, but a decades-old apex court ruling stated that if there was any violation of the law by a judge then it would be considered misconduct.
The apex court is seized with nine petitions moved by Justice Isa, the Supreme Court Bar Association (SCBA), the Pakistan Bar Council (PBC), Abid Hasan Minto, Abdul Basit, who heads the High Court Bar Association, Quetta, Muhammad Asif Reki, the President of Quetta Bar Association, the Sindh High Court Bar Association, the Balochistan Bar Council and the Sindh Bar Council.
Final arguments are being presented in the case, with the federal government’s attorney facing a tough time in the court. It remains to be seen whether the case is resolved before the court breaks for summer vacation.
Justice Isa is currently facing a misconduct reference filed by the president against him in the Supreme Judicial Council.
During the hearing on Thursday, Dr Naseem cited the example of the Indian apex court, which, he said, had declared the office of the judge is one of public trust. He added that in Pakistan, the office of the judge is of sacred trust in light of Islamic jurisprudence.
The federal government’s counsel argued that Justice Isa’s entire defence based on his spouse and children being independents, that he was not bound to disclose their properties, and that it is not misconduct.
He said the relationship of the wife was one of close proximity as she is a partner and therefore the judge is bound to disclose the properties of his wife. The widow of a judge receives pension even when she is financially independent, he added.
Dr Naseem said that it was at the discretion of the Supreme Judicial Council (SJC) to state what is misconduct and what is not.
He brought up the example of the Panama case wherein, he said, former prime minister Nawaz Sharif had given the argument that his children were independents and they should be asked about the purchase of Avenfield properties. Both the judges and their wives cannot avail the tax amnesty scheme 2018, said Dr Naseem.
The bench noted that in this case nobody has asked the wife about her properties.
Even in cases of the National Accountability Bureau it is the owner of the property who is first asked to explain the source of income, remarked Justice Sajjid Ali Shah.
However, Naseem said that when disciplinary proceedings are initiated then it is the judge who should be asked about the undeclared property first. He also referred to Articles 224, 205 and 63 wherein it can be inferred, he said, that the judge is accountable for the act of independent wife.
However, Justice Bandial noted that judges have a constitutional code of conduct, asking how the statutory laws were relevant for judges.
The bench also directed the government’s counsel to satisfy the court on allegations of mala fide intent, and to assist the court on the point of surveillance.
Justice Maqbool Baqar reminded the Centre’s counsel that a prior democratically elected government had been sent packing on charges of surveillance of judges.
Justice Bandial said that if mala fide intention is established it would end the jurisdiction of the SJC. “Since 1960, any act tainted with malice ends jurisdiction,” he said, noting that mala fide intent would also bring ulterior motives in question.
The court observed that if malice is proved, the proceedings of the SJC would be quashed. He asked again as to what value would any material hold if it was collected through illegal means.
