Deliberating a reference

Two weeks back, unconfirmed news started circulating in the media that the president of Pakistan had filed references before the Supreme Judicial Council against Justice Qazi Faez Isa of the Supreme Court, Justice K K Agha of the Sindh High Court and one other unnamed judge. Since then, numerous bar associations have expressed deep concern over this development.

It is not that the bar associations are against the accountability of judges; to the contrary, the loudest voice for accountability of judges has always come from bar associations. There is an obvious reason for that: unaccountable judges tend to turn into tyrants and it is lawyers who have to face their brunt on a daily basis. The reason lawyers are condemning the present references is because they don't seem to be about accountability.

For the uninitiated, the Supreme Judicial Council (SJC) is, roughly speaking, the equivalent of a court martial among judges. This is the court where judges of the Supreme Court and the high courts can be tried for the offence of 'misconduct' and removed from office. References can be filed in the SJC both by the government and by private citizens. While a private citizen can file a reference whenever s/he wishes to do so, the government cannot. In view of the constitutional principle of the independence of the judiciary, the state can only initiate a prosecution against a judge when: (i) a transparent, lawful and impartial investigation has furnished the government with sufficient evidence to initiate a prosecution which is likely to succeed; and (ii) a structured and transparent decision-making process has led the federal cabinet to the conclusion that the removal of the accused judge is in the public interest.

The filling of the present references has come under attack because the government looks to have not fulfilled either of these preliminary requirements. Instead, it appears that the PTI government simply jumped to prosecution without conducting much of an investigation. To some, the decision may seem arbitrary.

In the present case, if the federal government had received any information about mis-declaration of assets by a judge, the information should have been relayed to the FBR which, in turn, should have initiated a transparent and impartial investigation. The accused judges should have been confronted by the commissioner of income tax with the allegations, their reply should have been sought and considered. And most importantly, this investigation should have been done in a transparent manner, under the watchful gaze of the people, the press and parliament. Only if a fair and transparent investigation by the FBR had concluded that the judges were guilty of tax evasion could the federal government have proceeded with filing a reference in the Supreme Judicial Council.

From the facts available to the public thus far, it appears that these prerequisite steps for establishing the governments’ bona fides in prosecuting judges have not been taken. The least that can be said is that any investigation conducted has not been made public. Furthermore, it should be remembered that like most of the president’s powers enumerated in the constitution, this is a power that can only be exercised upon the advice of the prime minister or the federal cabinet. The PM and the cabinet are, in turn, bound to take decisions after thorough and well-documented deliberations, a principle recently reinforced by the Supreme Court in the famous case of Mustafa Impex. From the facts thus far available, if appears that no serious deliberations took place prior in the cabinet on this matter. Furthermore, there has also been talk regarding the timing of the references. The filing of the present reference against Justice Isa, despite his reputation as one of the most principled and competent persons presently on the bench, raises some serious questions.

Last but not the least, perhaps the most objectionable part of this saga is the manner in which information about the filing of references has been shared. If at all the federal government had decided to seek removal of these particular judges, the way to go about it would have been to inform the people of Pakistan directly, perhaps through parliament. Instead, the matter has been seen to have been handled in a rather secretive manner – through information and accusations made on social media. And now, every passing day, some additional snazzy bit of information is selectively leaked. All this is seen by many in the legal community as smearing the reputation of the accused judges even before they get their first opportunity to defend themselves.

Lawyers have chosen to speak up on this issue not out of our love or disfavour for any individual. We have chosen to speak up because, as citizens and as lawyers, we do not find it an ideal situation where any person faces charges which tarnish his or her hard-earned reputation, even before that person has had a reasonable opportunity to defend himself or herself. We do not wish to live in a country where such decisions are taken secretively; such decisions must always be arrived at through the deliberative institutions of cabinet and parliament, through public reasoning and debate. This recent issue is seen by many conscientious citizens as an effort to intimidate the free judiciary of this country.

One hopes the government re-considers its decision in view of the concerns expressed here. Not only the lawyers community but the Pakistani citizens and the world at large will be closely observing this trial to see whether the constitution's guarantees of due process of law, fair trial, access to information and open justice are fully respected.

The writer is a partner at The Law and Policy Chamber.

Email: umer.gilani@gmail.com