Two judges write dissenting notes in Justice Isa case

They raised issue with the president, investigation
Nov 04, 2020

Two Supreme Court judges have written dissenting notes in the Justice Qazi Faez Isa case.

Justice Isa is a Supreme Court judge who had a presidential reference filed against him for “concealing his assets”. He denied the charge and was acquitted by the Supreme Judicial Council. However, the FBR was directed to investigate his wife Sarina Isa’s assets.

To read a full timeline on the Justice Isa case, click here.

The dissenting notes were released by the two judges, Justice Maqbool Baqar and Justice Mansoor Ali Shah, on Wednesday. Justice Yahya Afridi submitted his dissenting note earlier. They both raised concerns over sending the case to the FBR.

According to Justice Baqar, the reference alleged that Justice Isa failed to declare in his wealth statements three properties owned by his wife and adult children in London and that the source of acquiring the properties had not been disclosed. “It was contended that it can therefore not be ruled out that the properties have been acquired through money laundering.”

He noted that the case was a “ruse to camouflage the fact that the purported reference was a product of the animus and ill-will harboured by the main ruling political parties and some government agencies against the petitioner [Justice Isa], and of their desire to remove the petitioner from his office, whom they perceived as an obstacle in their riding this country roughshod, and also to over owe the other judges of the superior courts of this country into subjugation”.

He noted that Justice Isa was appointed as a one-man commission to investigate a 2016 suicide bombing in Quetta in which 75 people (mostly lawyers) were killed. “His report was unsparing of the role of the various intelligence agencies operating in Balochistan at the time and raised many hackles.” His lawyer had mentioned this during the trial.

He also referenced the 2017 Faizabad Dharna case Justice Isa gave the judgment in, which “triggered a chain of events that eventually led to the filing of the purported reference”.

Justice Baqar also referenced several sections from Justice Isa’s judgments and said Justice Isa’s laywer Muneer A Malik submitted that while otherwise unexceptionable in law, “the inconvenient truths mentioned in the judgment sparked the fury of not only the ruling political parties, but also the various State agencies and departments mentioned therein”.  

Justice Baqar also questioned the veracity of the person who filed the complaint against Justice Isa. Dogar didn’t give his phone number or address and claimed to be a journalist but didn’t disclose whom he worked for.

“The purported complainant has also not disclosed as to how, in the first place, he came to know about the alleged ownership of the properties, particularly when he did not even know the names of the petitioner’s wife and children, the alleged owners of the properties, and more intriguingly, as to how he discovered that the properties were not disclosed by the petitioner in his wealth statements, which is a confidential information, protected under the income tax law, unauthorized disclosure whereof is a penal offence.”

The dissenting note casts doubt on the process through which the case was prepared against Justice Isa by the complainant, Assets Recovery Unit chairman, law minister, FIA and FBR. Justice Baqar also said President Arif Alvi violated the rules by not ensuring that the reference had the approval of the cabinet before being sent to him nor did he have the jurisdiction to entertain the petition, which was filed by a private complainant.

“By following the advice of the prime minister, and not applying himself independently, the president has committed a gross violation of the Constitution,” noted the judge.

He also touched upon a 1998 SC judgment that disqualified then premier Benazir Bhutto and held that covert surveillance of judges by intelligence agencies was in and by itself sufficient ground for the dissolution of a government.

He quoted the judgment as saying that “if the executive interferes with the judiciary in any manner… [i]f the privacy of the Judges and their communications is not ensured, then it is not possible for them to discharge their duties in the manner envisaged and mandated by the Constitution.”

“Twenty-two years have passed since this judgment but it continued to be disregarded. Such disregard is at the nation’s peril, destructive of the Judiciary’s independence and in negation of the Constitution.”

Justice Baqar referenced petitions filed by the MQM and PTI against Justice Isa and said they don’t want him to be a judge or hear review petitions. “Indeed direct proof of a collateral purpose, an ulterior or improper motive is exceedingly rare, however, this is one of those rare cases where the relevant actors have actually submitted their collateral purpose and motive to the Court in writing. The emergence of this complaint and the filing of this Reference, regarding purchases made back in 2004 and 2013, barely a month after these review petitions is not a mere coincidence,” he noted.

In his dissenting note, Justice Shah said “This case makes us think, whether we want our future generations to descend into a dystopia or grow up into a vibrant democracy with an understanding and conviction that in a democracy, the State is neither with us nor against us. It is us”.

He also raised issues with the investigation and the president’s reference. He said the president’s failure to form his opinion has compromised the neutrality of the office of the president.

“If we start reading the events after the Faizabad Dharna judgment, one is compelled to conclude that the Petitioner Judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power,” noted Justice Shah.

“The vengeance and resentment against the Petitioner Judge is more than visible from the strange and unprecedented assertions made for his removal on the ground of misconduct in the review petitions; soon it took shape of a vague complaint filed before an incompetent authority (ARU) housed in the office of the prime minister,” he said.

Justice Shah has also disagreed with the short order that directed the FBR to issue notices to Justice Isa’s family.  

Justice Qazi Faez Isa

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