Pakistan Supreme Court judge, wife argue their case in-person before 10-judge bench of Pak SC; succeed

Sitting judge of Pakistan Supreme Court, Justice Qazi Faez Isa and his spouse, Sarina Faez Isa appeared and successfully argued their case in-person before a 10-judge Bench of Pakistan Supreme Court [Justice Qazi Faez Isa v. President of Pakistan]..The arguments were made in a review petition filed by them against the top court’s earlier judgment which had ordered Federal Board of Revenue (FBR) to conduct an inquiry into the non-disclosure of three foreign properties of Justice Isa's family members - spouse and children - in the declaration of his assets filed with the annual income tax returns..By way of its 45-page judgment, the Court not only allowed the review petition by a majority of 6:4, but also stressed on the importance of judicial accountability while at the same time emphasising the significance of ensuring independence of judiciary.The opening sentence of the judgment declared that “no one, including a judge of the highest court in the land, is above the law”..At the same time, no one, including a judge of the highest court in the land, can be denied his right to be dealt with in accordance with law, the Court underlined.“Every citizen of Pakistan, notwithstanding his status or position, is entitled to due process of law in any action detrimental to his life, liberty, body, reputation or property under Article 4 of the Constitution and safeguarding of his fundamental rights guaranteed under Articles 9 to 28 of the Constitution,” the Court said.Pertinently the Court said that “if the officers of the Federal or Provincial governments or of the autonomous bodies or authorities under the control of such governments are allowed or empowered to file complaints concerning or emanating from their official actions against judges of the constitutional courts who, in exercise of their constitutional jurisdiction, make judicial review of official actions and inactions of such officers, there would be disastrous consequences for the independence of judiciary.”.Some of the other highlights of the judgment are as follows:- While judicial accountability is the cornerstone of judicial independence, it does not mean that accountability of a judge is bereft of due process of law and fair trial guaranteed under the Constitution;- An open court-house is no less than a glass house, yet the judges boldly and courageously uphold the law even against the mightiest in the land, without fear and favour, in full public gaze. In doing so, they step on many a toes and rattle many a skeleton. This may at times, invite efforts to discredit them by creating doubts about their personal integrity;- Since judges have no public platform to clarify, respond or defend themselves, such efforts go beyond the person of the judge and undermine public trust and public confidence in the judicial institution;- Constitutional safeguard of due process to enjoy the protection of law and to be treated in accordance with law, therefore, assumes even greater significance in the case where integrity of a judge is in question;- Unfortunately our chequered history has seen numerous attempts to trample upon judicial independence during both, civilian as well as military governments. Nonetheless, we must not become prisoner of our past and must now obviate any attempt to damage the judiciary;- Any attempt to muffle judicial independence or to stifle dissent shakes the foundation of a free and impartial judicial system, thus eroding public confidence on which the entire edifice of judicature stands..The President of Pakistan, on advice of the Prime Minister of Pakistan, had filed a reference under Article 209 of the Islamic Republic of Pakistan 1973 (Constitution) against Justice Isa in the Supreme Judicial Council of Pakistan (Council) to conduct inquiry against him, alleging misconduct by Justice Isa mainly on the basis of his non-disclosure of three foreign properties of his family members - spouse and children - in the declaration of his assets filed with the annual income tax returns under Section 116 of the Income Tax Ordinance, 2001 (ITO).The Council commenced inquiry proceedings against Justice Isa, in the said reference. Justice Isa and many bar councils and bar associations of the country, challenged the action of filing the reference by the President and also the proceedings commenced on the basis of the same by invoking the original jurisdiction of the Supreme Court of Pakistan.The constitution petitions were allowed by the Supreme Court which quashed the reference filed against the petitioner and held that the process adopted in preparing the reference was fraught with illegalities of such scale and degree that amounted to mala fide in law and declared that the proceedings initiated by the Council on the basis of that reference, stood abated.The Court left the matter of its alleged violation of Section 116(1)(b) of the ITO by Justice Isa to be determined in the first instance by the hierarchy of the concerned legal forums specified under the ITO. However, the Court, on its own, went on and directed the Commissioner of Inland Revenue, Islamabad (Tax Commissioner) to initiate proceedings against the family members of Justice Isa [but not against Justice Isa], under the ITO and directed the chairman of FBR to submit a report regarding the determination made in those proceedings by the Tax Commissioner to the secretary of the Council.The secretary was directed to place the said report before the chairman of the Council and the Council was asked to consider it in the matter of Justice Isa, in exercise of its suo motu powers, as it may deem appropriate.This judgment came to be challenged before Supreme Court by way of review petitions..The Court in its judgment held that the direction by the Supreme Court to the chairman of FBR to submit report to the Council and asking the Council to consider that report for deciding to take any action against Justice Isa has the effect of directing the chairman to file a complaint in the Council against Justice Isa, in the form of report. These directions have effectively authorized the chairman to do an act which he is not empowered to do under the Constitution or law, the Court said.He being an officer subordinate to the Federal government cannot make any complaint against a constitutional court judge directly to the Council; only the Federal government can do so and that too by the constitutional process of acting through the President, the Court held.If such officers are allowed to file complaints about judges of Constitutional courts, it will have disastrous consequences for the judiciary, the Court maintained.Importantly, the Court also held that a judge cannot be held liable for unaccounted assets of their spouses and children.“Nothing is there in any law or in the Judges’ Code of Conduct which could possibly be stretched to hold a Judge liable for the conduct of his spouse and children, or for that matter of anybody else, without there being any evidence to connect him with, and hold him responsible for such conduct. Needless to remind the salutary principle of law that everybody is responsible for his own deeds or misdeeds, acts and omissions, and nobody incurs any liability on account of any wrong committed by any other person,” the judgment said.Hence, the Court concluded that Supreme Court could not have referred the tax matter of Justice Isa’s wife, to the Council as the role and jurisdiction of the Council is limited to the matters relating to the conduct and capability of the superior court judges.“It is not mandated to delve into the affairs of someone who is not a judge of a superior court,” the review judgment held while allowing the plea..[Read Judgment]