The Victory of Justice Issa
The Supreme Court by majority of 6-4 accepted Justice Qazi Faiz Issa and other petitions filed against the Short order of Supreme court dated 19th June wherein Supreme Court by majority of 7-3 sent the matter to FBR for further inquiry. The reference prepared by two dubious characters and touts Farogh Nasim and Shezad Akbar for the removal of a judge in Supreme Court belong to Balochistan through the Supreme Judicial Council is now a part of dustbin. The Supreme Judicial Council, a constitutional body under article 209 of the Constitution of Pakistan, is the sole forum for the removal and accountability of superior courts judges consisting of the Chief Justice of Pakistan in chairs, the next two senior most judges of Supreme Court and the two senior most Chief Justices of the high courts in Pakistan are members and registrar supreme court act as Secretary of the Council.
The story of the reference starts from 2019 when a certain propaganda campaign was launched against Justice Qazi Faiz Issa on social media. In the background of this campaign was a report he wrote after the worst terrorist attack in Quetta in which most of the lawyers of Balochistan were killed, and the second and most important reason was his outspoken judgment which he had authored in the Faizabad sit-in case. It is also crystal clear who was really hurt by these two documents. The ruling coalition filed review petitions against the Faizabad sit-in judgment not only, but they also used extremely derogatory remarks and phrases against Justice Issa, even questioned his credibility and initial appointment as chief Justice Balochistan high court. The reference is rooted in the same review petitions. Ms. Firdous Ashiq Awan, who was special assistant to the Prime Minister at that time, held a press conference in which she stated that the Reference was the“ehtisaab ka shakinja” against the Petitioner judge as he had “played a shot by stepping out of the crease” Reference has alleged that the Justice Issa had failed to declare in his wealth statements, three different properties, jointly owned by his wife and children in London, as was required of him in terms of Section 116(1)(b) of the income tax ordinance 2001, and ancillary thereto, had claimed that the source of acquiring the said three properties have not been disclosed/accounted for. It was contended that it can therefore not be ruled out that the properties may have been acquired through money laundering. After filling the impugn reference the SJC under the chairs of former Chief Justice Asif Saeed Kosa issued a show cause notice to Justice Issa and then after the issuance of show cause notice and many others proceeding justice Issa invoked constitutional jurisdiction of Supreme Court and filed constitutional petition under article 184/3 against the proceeding of the Supreme Judicial council which was only available way and remedy with him under constitution and in choosing this path it was clear to him that this path is very difficult, long and patient. In the first instance of the case a question arose, whether Supreme court can take up an issue which is pending before the Supreme Judicial Council because article 211 of the Constitution barred jurisdiction of any court against the proceeding and decisions of Supreme Judicial Council but in the light of dictum laid down by Supreme Court in Chudry Iftikhar case Justice Issa got relief and Supreme Court decided to reviewed judicially malice of fact and law in making and filling the reference. After bare perusal of reference Supreme Court’s full bench unanimously quashed the reference against Justice Issa and termed as malice in Law not in Fact and by majority of 7-3 send the matter to FBR for further inquiry through short order dated 19 June. FBR was further directed to conclude their investigation from Petitioner’s judge spouse and submit their findings to the Chief Justice / Chairman of the council. If the council deem pit may initiate fresh proceedings against the petitioner judge while exercising suo motu jurisdiction.
In the said short order three members Justice Maqbool Baqer, Justice Mansoor Ali Shah and Justice Yahya Afradi annexed theirs owns separate note and terms the reference both malice in Law and malice in Fact. The Justice Issa and others filed constitutional review petitions against the majority view of the bench and Questioned the findings of the bench in para 4 to 11 contains in short order. In meanwhile after filling the review petitions the new controversy arose. The Chief Justice while exercising his extraordinary discretionary powers constituted a new bench for review and excluded the three judges of minority view. Justice Issa and his wife filed miscellaneous applications, under Order XXVI, Rule 8 of the Supreme Court Rules, 1980. Which letter on allowed and reconstitute a new bench and judges who were of the minority view also included in the bench. At this time Justice Qazi Faiz and his wife personally appear before the court and argue their case in personal capacity. It is witnessed for the first time in the judicial history of Pakistan, that the incumbent judge of Supreme Court along with his wife and daughter appears before the court and pleads justice for themselves.
Justice Qazi Faez successfully changed the mind of three other judges. Justice Manzoor Ahmad Malik , Justice Mazhar Alam Mian khail and Justice Amin u din Ahmad changed their views and set aside the 19 June order through which FBR was directed to proceed further and submit its findings to SJC within ninety days. Four judges including the head of the bench Justice Umer Ata Bandial upheld their view. After the Supreme court’s short order with a majority of 6-4, the impugn reference is now in the dustbin. Accepting Justice Isa plea is not only the victory of Justice Issa and his family alone but it is a landmark victory for democracy, independence of judiciary and for those who believe in constitutionalism in Pakistan. This decision will have many effects and implications on our judicial system. Now no judge will feel afraid and fear while exercising his constitutional duty during seating on the bench. Let’s wait to the details reasoning for the said order which will further elaborate the matter.
By: Waqas Ahmed, Law Student at Abdul Wali Khan Universty Mardan
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