Pakistan: Above the Law

The reference against Pakistan's two justices of the higher judiciary will have to prove their worth during the course they will have to take. But an important signpost has been erected by this reference, namely that nobody can claim to be above the law and laws apply to each and everybody.

Posted on 06/17/19
By Ikram Sehgal | Via ViewsWeek
Supreme Court of Pakistan building in Islamabad. (Photo by ImposterVT, CC license)


The accountability drive of the PTI government has created another drama that is causing much excitement in the talk shows of Pakistani TV channels as well as the iftar parties of the political opposition. The federal government has filed references of misconduct against several superior court judges for allegedly hiding properties they own abroad, the most prominent among them being Justice Qazi Faez Isa of Supreme Court of Pakistan. According to a report in the Express Tribune, President Arif Alvi has sent a reference of misconduct against the judges that own properties abroad in their own or spouses’ name. Justice Isa earned prominence and the gratitude of the Sharif family when he let them go scot-free in the Hudaibia case in which there was no doubt about their guilt. Ishaq Dar had given an approver’s statement under oath.  He threw out the review of the case demanded by the NAB and forever barred its hearing by the apex court. Justice Isa point blank refused to allow the NAB prosecutor to invoke the observations made by the Chief Justice and bound the media not to report this matter. Thus the reference filed against him has aroused sympathy and solidarity among those who might fear to find themselves under the scrutiny of the NAB and in need of a favorably inclined judge in future.

Right next day after the news about the reference was leaked out Additional Attorney General Zahid F Ebrahim resigned from his office describing the reference in his resignation letter as a “reckless attempt to browbeat the judiciary”. What did this – now resigned- member of our judicial system mean when he called Justice Isa a “senior Supreme Court judge who is widely recognized for his unimpeachable integrity”? Did he mean to say that there are some people so holy that they are above the law and cannot be questioned?

Next the Supreme Court Bar Association (SCBA) stepped into action. The executive committee of the SCBA expressed its concern over the media trial of the superior court judges, with its president Amanullah Kanrani ensured the judges of the solidarity of the SCBA and emphasizing that the entire body of lawyers was standing by Justice Isa and colleagues. But in the sympathy declarations of this highly influential body for Justice Isa came up another very interesting argument: Mr Kanrani, President of the SCBA who happens to belong to Balochistan as well, recalled that the forefathers of Justice Isa had played an active role in the creation of Pakistan! Well, would that mean that the veterans of the Pakistan Movement should again be above the law and be allowed to have their small undeclared properties abroad? The idea of justice that has been expressed by these highly educated, positioned and influential members of our justice serving system sounds astonishing to say the least! The main principle of a democracy that all people of a state are equal in front of the law and have to submit to it equally seems to be unknown or unacceptable to them. How could they otherwise demand that members of the higher judiciary should remain unquestioned in case questions about their conduct are arising?

In the meantime the political opposition is swinging into action as well with the PPP in the frontline. This is even more understandable because first it is the avowed aim of the opposition to bring down this elected government and secondly, the Bhutto-Zardari family has its own troubles with the NAB and urgently needs favorable treatment when some of their multiple cases will make it to the courts. Thus PPP ministers hint at launching a public movement if the government attempts to remove Supreme Court judge Justice Qazi Faez Isa through the reference to the Supreme Judicial Council (SJC). Minister Saeed Ghani even doesn’t rule out a meeting between the estranged political leaders Asif Ali Zardari and Nawaz Sharif. By making the fight against corruption the central piece of their policy the PTI government has really stirred up a hornet’s nest!

But there is no other way to bring a change in Pakistan’s economy and political system than to clean the Augean stables. And that is what the government is trying to do. To calm the waves the Assets Recovery Unit (ARU) of the Prime Minister’s Office in a joint statement claimed on Sunday that the reference was not malicious but had a very solid basis. They had received certified copies from the land registries of the assets in the United Kingdom owned by learned judges of the superior courts, on the basis of which references had been filed against them before the Supreme Judicial Council (SJC) as per the Constitution. The spokespersons said the copies were duly attested by the High Commission of Pakistan in the UK and notarized in London. That seems to exclude mala fide intent from the government side.

But the way the matter has been handled so far is obviously not in accordance with the rules. The fact of the references should not have been leaked out to the media at least not at this stage. People responsible for the leakage have to be identified and made accountable. Justice Isa in his letter to the President of Pakistan mentioned that the presence of a reference should be only disclosed to the public after the person in question would have been informed and called upon to submit a reply. It is untenable that one gets to know about the matter through the media. Justice Isa further conveyed to the President that “selective leaks amount to character assassination” jeopardize his right to due process and fair trial. And again, there he has a point.

There is, of course, another angle to look at the case of Justice Isa as well. One year ago an aggrieved person, Maj. (Retd) Shabbir of NAB, had written a letter to Justice Isa requesting him to help by revisiting the judgment rendered in his case in the course of which the aggrieved lost his job.  Whatever the merit of the case it does not bode well for the learned judge who is now asking for justice himself that even after a year he has not condescended to give an answer to the complainant who had along with Maj. Burhan and others given long and meritorious service to NAB recovering many tens of billions of rupees. All of them were sent home on a technicality.  Was that justice? Justice Isa can now possibly better appreciate the moral aspects of a case like the one of just mentioned when he himself is feeling the heat of moral character assassination.

After the dismissal of PCO judges Justice Faiz Qazi Issa was appointed by then Supreme Court Chief Justice Iftikhar Chaudhry as Chief Justice Balochistan High Court (BHC) directly from the rank of a lawyer, albeit a prominent one. His public perception of being a man of great integrity and conscience was unfortunately made controversial on his elevation to the SC subsequently. Technically correct it was not morally so given his very small period in the BHC. By and large his judgments have been well received except where it seems to bear that motivated interest or bias like in cases such as Hodaiba, that of the NAB officers sent home summarily, etc. His judgements therein seem to lack his normal logic, or was it deliberate exercise of prejudice because of a deep-rooted hatred for the uniform?  Can someone with such a biased mindset have a say in matters of national security that require subjudication?

The Reference against two justices of the higher judiciary will have to prove their worth during the course they will have to take. But an important signpost has been erected by this reference, namely that nobody can claim to be above the law and laws apply to each and everybody. This is a central principle of democracy and justice service. As a matter of fact the higher a person is positioned the stricter he or she has to observe the law and be accountable for it. And especially the judiciary has to be above suspicion – how can they apply the law to others when it is not applied to them? Therefore, accountability has to start from the top and from those who are in charge of delivering justice.

The writer is a defense and security analyst.



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