The Reference is Dead; Long Live the Reference

Article 209 (5) may have been the provision that made way for the President of Pakistan to file a reference against Justice Qazi Faez Isa. But it was probably Article 209 (7) that left the President with no other choice. It reads as follows:

“209 (7): A Judge of the Supreme Court or of a High Court shall not be removed from office except as provided by this Article.”  

There was just no other way around it and apparently it had to be done.

However, the reference against Justice Isa now stands quashed by the Supreme Court through a short order dated 19-06-2020 passed in several clubbed constitutional petitions including Constitutional Petitions No. 17 and 19 of 2019.

The short order has both quashed the reference and also kept it alive though. The reference itself won’t live but the allegations therein shall remain; they will be probed by an officer of the Inland Revenue Services and a report of proceedings shall be submitted to the Supreme Judicial Council (SJC) for action thereupon.

In para 9 of the short order the honourable Supreme Court says,

“The receipt of the report, the laying of it before the Council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the Council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the Council.”

Thus the reference hasn’t been quashed per se, only the President’s signature and the government’s watermark thereon has been quashed or deleted. Another watermark remains.

The above quoted part of the order also hints at a possibility that the reference was not quashed for reasons of being malicious but owing to certain procedural lapses. Also, had the reference been quashed for being malicious or aimed at maligning, undermining or scandalizing the judge, there would have been or should have been consequences, under Section 14 of the Supreme Judicial Council Procedure of Inquiry 2005, for the President or the government that advised him.

The reference – that remains – contained allegations of misconduct against Justice Isa. These allegations, as they appear to be, included certain foreign properties belonging to Justice Isa’s wife and children which may have been unaccounted for and may actually have been owned by Justice Isa who may have bought them in the name of his spouse and children with money that may have been acquired through illegal or illicit means and may have been transferred by way of money laundering.

One wonders if the filing of the reference in May was somehow symbolic of the allegations being marred by so many ‘mays’.

Anyway, the reference – that remains – does not make any mention of an actual instance of illegal acquisition of money or even a suspected transaction. It is more like an assertion which goes like this: since there are shards of broken glass on the floor, I must have broken it, even if no one saw me break it, or hold it, or be in the same room with it, or even if the glass presumed to be broken is still in one piece.

There remains little doubt that someone went on a fishing expedition to find something against Justice Isa. Why else would properties owned by his spouse and children since 2013 or before suddenly begin to ring alarm bells in the President House, or nearby? What did Justice Isa do in 2019 that he didn’t do in the years before? Or should the question be, what didn’t Justice Isa stop doing?

Since we are on the subject of dead references being alive, another reference had been filed against Justice Isa by Mr. Waheed Shahzad Butt which was decided upon and dismissed by the SJC vide order dated 19-08-2019. In that order, the then Chief Justice of Pakistan and Chair SJC, Justice Asif Saeed Khosa had accused Justice Isa of being blatantly untruthful in his letters to the President. Para 6 of the said order reads as follows:

“6. The three letters written by the respondent-Judge to the President clearly stated that till the writing of those letters the respondent-Judge did not know whether any Reference had actually been filed by the President against him or not and in any case he was unaware of the contents of and the allegations leveled in any such Reference if filed. The above mentioned meeting of the respondent-Judge with the Chief Justice of Pakistan shows that the respondent-Judge not only knew about filing of the Reference against him by the President but also about the actual contents thereof and the allegations leveled therein before he had started writing successive letters to the President on the subject professing his ignorance about the same.”

Now that is an actual violation of the Judge’s Code of Conduct, Article II of which states the following:

“A Judge should be God-fearing, law-abiding, abstemious, truthful of tongue, wise in opinion, cautious and forbearing, blameless, and untouched by greed…”

If all else fails and the Commissioner Inland Revenue somehow gives Justice Isa and his family a clean chit, can we see another dead reference coming back to life? Only time will tell. Or someone who has already been told by time. Or someone who tells time what and what not to tell.

For now, the reference is dead; long live the reference.

The views expressed in this article are those of the author and do not necessarily represent the views of or any organization with which he might be associated.

Zafar Zulqarnain Sahi

Author: Zafar Zulqarnain Sahi

The writer is a lawyer by profession. He is a Gold Medalist in LLB from Punjab University and has a LLM degree from University of Warwick, UK. He is also a former Member Provincial Assembly of Punjab (2008-2013).