Daily Times

The Supreme Court’s short order on various petitions against the Presidential Reference 1 of 2019 against Justice Qazi Faez Isa has come and there is considerable confusion as to what the judgment means for Justice Isa’s future. The Presidential Reference has been quashed as it should have been unanimously in paragraph 1 of the judgment. However, the majority judgment has also gone ahead and referred the matter to FBR. This has been made time bound and ultimately a report is to be laid before the Chief Justice for further action in Supreme Judicial Council, if need be. Thus Justice Isa is not home free but neither are the President and current government. Three judges, Justice Maqbool Jaffar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, while joining in the quashing order have dissented from the judgment in so far as the FBR part is concerned. They have disagreed with the judgment presumably because of the implications that arise from it.

Legally the short order seems to be sound, though the final judgment will lay down the reasons for it. We can make a few guesses as to what those reasons will be. In our constitutional scheme the President of Pakistan generally acts on advice but there are certain Articles of the Constitution where the President acts in his own discretion and opinion. Article 209 is one such Article of the Constitution which seems to require of the President to act after making up his or her own mind. Article 211 says that the Supreme Judicial Council’s actions shall not be called into question in any court. In the landmark Chaudhry Iftikhar case, it was established that the events leading up to the proceedings at the Supreme Judicial Council are not saved by the Article 211 bar. This is what forms the basis of the judgment. In order to establish that there was any misconduct and therefore need for a reference, there had to be a key exercise that was not undertaken which was under Section 116 of the Income Tax Ordinance of 2001. This was not undertaken.

It is tragic that those in power often commit malfeasance to achieve their ends and such tragic misuse and abuse of power goes unchecked and unpunished

The question now is whether the reference was malfeasance or misfeasance on part of the president. Malfeasance would mean that the reference was based on mala fides in fact on part of the President, which is roughly what malice in fact is. This means that the president, while exercising his powers, did not act in good faith when the facts did not warrant a reference and the intention was manifestly to do harm. There is also the possibility that it was malice in law i.e. the president acted without just cause intentionally and therefore there was misfeasance i.e. wrongful use of authority. Here the President had to make up his mind but did so nevertheless. Either way the President does not get away from the charge that in applying Article 209 he acted out of malice i.e. bad intention. It would be interesting to see if this opens up the President to Articles 62 and 63 of the Constitution, which apply to him because the qualifications of the President are the same as that of a parliamentarian. Does that mean we can expect a petition under Article 184(3) against the President. That door remains open after the disqualification cases of the last decade under the notorious Article 62(1)f. Whether the President remains sagacious, righteous and indeed non-profligate after this is a matter that may well be hammered out in the Supreme Court.

Legally it made sense to refer the matter to FBR to proceed de novo but will the FBR be able to proceed independently and without political pressure remains to be seen. While the Chairman FBR is required to submit a report to the Chief Justice, we can be sure that the government will do all it can to use the FBR against the Isa family. However that too will be malfeasance and depending on which way the wind is blowing, while the realm of possibility includes fresh SJC proceedings against Justice Isa but the government can also find itself in hot waters. It would ill-behoove the government and FBR to act with malice of any kind in the matter. The government would be well advised to proceed with caution and sagacity by allowing the FBR to do its job fairly and impartially.

It is incredible though that the law and the constitution should be used by the government of the day to settle personal scores. In the Faizabad Dharna case Justice Isa had nominated amongst others PTI itself as amongst those actively enabling the rioters. It was the kind of politics that ends up hurting the country but now the government is attempting to silence him, especially since he is in line to be the Chief Justice of Pakistan. It is tragic that those in power often commit malfeasance to achieve their ends and such tragic misuse and abuse of power goes unchecked and unpunished. We are in for another bumpy ride, not the first time in our history and one fears not the last either. All institutions need to operate within the bounds of the constitution and code of conduct. It requires selflessness, which is often a virtue that is found lacking in the corridors of power in Pakistan. In the process it is Pakistan that suffers and as a result we all suffer.

The writer is an Advocate of the High Courts of Pakistan