Let’s refer to the wisdom of American lawyer, Antonin Gregory Scalia, regarded among the judicial circles as one of the most influential jurists of the twentieth century for his unflinching commitment to judicial independence and transparent conduct of the judges. He said, “If you are going to be a good and faithful judge, you have to resign yourself to the fact that you are not always going to like the conclusions you reach. If you like them all the time, you are probably doing something wrong.”
Leaks and vigorous courtroom reporting of judges remarks, mostly out of the context, have built a strange but mixed public perception about this reference
The context to this extremely relevant quote of the master jurist is attached with the resumption of the legal battle over much-talked-about presidential reference against honourable Justice Qazi Faez Isa. One remains innocent until proved guilty so is the status of Justice Faez Isa though Supreme Judicial Council had served him two show-cause notices amid presidential reference. A formal hearing has not yet started as the legality of reference has been challenged in Supreme Court by Justice Faez Isa. The entry of Barrister Farogh Naseem as an advocate of the state, after a quick shuffle of the ministerial hat, has made a bundle of spicy headlines. Sharp probing remarks and queries from bench members about presidential reference have attracted public attention and put the government’s council on a tough test of professional skills. No wonder it has to be like this as the reference sent to the apex judicial body, against one of its peers, came from no ordinary office other than the president of Pakistan. A threadbare discussion and dispassionate legal scrutiny by the contesting professionals is to be ensured before entering the decisive phase.
Justice Faez Isa has launched an interesting legal counter-attack by challenging the intents behind the reference, means of evidence collection and suitability of the opponent councils to appear as an advocate of the state. Before this, Justice Isa responded to the matter by writing a letter to the president about the reference and also urged the Supreme Judicial Council to make all proceedings as well as his replies public. This seems a natural response as the filing of reference made it a talk of the town that three properties owned in the UK by the spouse of the honourable jurist were not declared by him in the official disclosure of the assets. Since the repute got ruptured in public eyes, so the subsequent in-camera proceedings and restricted response will be detrimental to the damage control measures. Leaks and vigorous courtroom reporting of judges remarks, mostly out of the context, have built a strange but mixed public perception about this reference. Judiciary, being an important pillar of the state, carries a sensitive role in an ill-governed country like ours. Defeats in few legal battles fought on the floor of our courts unexpectedly ended at the ouster of PMs and some of the erroneous judgements or over-exuberant Sou-Moto notices costed us in billions of dollars. Antonin Scalia had an eye to forecast the deeper consequences of jurist’s judgmental error or sentimental biases. If we look at the legal battlefield today, it seems that both sides, the government and the jurist under allegation, are not at ease! This is also worth noticing that the hype of spicy reporting has screened the deep trouble being faced by the honourable members of the apex court involved in hearing the reference and allied petitions. It is no less than maintaining the balance while walking on a tight rope. Court has to make certain conclusions, bitter or sweet, basing upon the evidence, prevailing circumstances and intriguing contexts. On one hand, legal fitness vis-a-vis merit of the reference will be evaluated and, on the other hand, the honour of the jurists’ fraternity will be weighed on the universally acknowledged scales of higher moral grounds. The legal status of Assets Recovery Unit has been questioned in the pretext of unfair means of evidence collection. What if the evidence, what so ever it might be, comes from a fair source? As per media reports, the Money Laundering Act does not apply to the costly properties bought at the UK in 2013. What if the parliament, at any stage, legislates afresh by making it mandatory for all public office holders to declare and justify the holdings of their near and dear ones? American code of conduct for judges comprising five canons demands superior conduct from jurists. Canon one says “A judge should uphold the integrity and the independence of the judiciary”. Canon two demands “A judge should avoid impropriety and the appearance of impropriety in all activities.” Reference in question must not be viewed with a muddy lens as a personal tussle between a president and a jurist! Both are honourable public office holders and equally liable to commit a mistake unwittingly. Withdrawal of reference by the government or any subsequent verdict by the Supreme Judicial Council will surely bring unpleasant consequences for the stakeholders. Justice Faez Isa has not yet denied the buying of properties by his spouse abroad. Law might accept his non-involvement in spouse’ property ownership but universally acknowledged code of jurists demands something bolder and honourable from him. If the wealth existing in close family circles is earned through fair means, then a jurist should step forward voluntarily and deliver a jaw-breaking clarification to all his critics. Legal neutralization of reference on technical grounds might bury the issue in judicial terms but it will fall too short on the scales of higher moral grounds. An unexplored closure of the reference is likely to generate many unanswered questions spoiling the collective image of stakeholders. In a society like ours, powerful Sharif and Bhutto political clans are facing a credibility crisis amid a collection of undeclared wealth abroad through unfair means.FydorDostyevsky in his all-time great classic novel ‘Crime and Punishment’ wrote “The man who has a conscious suffers whilst acknowledging his sin. That is his punishment”. Upright stature can only be claimed by opting for a bolder unprecedented clarification about the wealth flowing in close family circles. Undoubtedly, the apex court is dealing with a complex case where the honour of the judiciary, fault lines of the legislature and deep-rooted termite of corruption are badly entangled with each other. As the saying of Alexander Pope goes “Act well your part, there all the honour lies”. Let’s see how the honour of the jurists is maintained in this complex legal battle!
The writer is a freelance and can be reached at [email protected]