Presidential reference against him was quashed on June 19
Supreme Court judge Justice Qazi Faez Isa found himself in the middle of a hotly debated case after a presidential reference accused him of misconduct. The reference has now been quashed.
The presidential reference was filed in May 2019 against him for owning properties under his wife and children’s names. He denied the charges. References against the judges are heard by the Supreme Judicial Council.
Justice Isa, in an unconventional move, went to the Registrar’s Office in person and filed a petition challenging the reference under Article 184(3), a law that gives the Supreme Court the jurisdiction to hear matters of ‘public importance’ with reference to the ‘enforcement of fundamental rights’ of citizens.
The case, which spread over a year, saw a lot of drama unfold during its 46 hearings. Former chief justice Asif Saeed Khosa formed an eight-member larger bench to hear the petition. However, Justice Isa’s legal team, led by famed lawyer Munir A Malik, with Babar Sattar and Sallahuddin, objected to the inclusion of two judges and requested a full court. After that, those two judges recused themselves and the former chief justice included three Supreme Judicial Council senior judges to form the 10-member full court.
In a June 19 short order the court quashed the reference against the judge and ordered the inland revenue commissioner to issue appropriate notices to the judge’s family and children under the Income Tax Ordinance, 2001 within seven days.
His wife Sarina Isa has filed a review petition against the judgment, as have many bar councils. Many are hoping that a detailed judgment can better explain the verdict. It is expected in September.
Sources claim that the detailed judgment in the case is expected to be released at any time after the first week of September. In this full court, two judges are tax law experts and one one is part of the seven-member majority who sent the issue to the FBR.
Sources claim that this honourable judge could write the majority judgment. However, the dissenting note of the judge – who is also an expert on tax laws, and among those three judges who did not endorse the view to refer the matter to the FBR, is also considered very important.
The outcome is eagerly anticipated as it is linked to crucial questions: what were the reasons behind the decision to send it to the FBR? What were the grounds on which the petition was dismissed? Was it because of malafide intent or some technical grounds? All of these questions and more will be answered with the detailed verdict. If the grounds are said to be malafide, then it may have consequences for the federal government.
In the short order, all 10 judges agreed on rejecting the presidential reference but three judges were against sending Justice Isa’s family matter to the FBR.
Because of the court’s summer break, the 10 judges are not physically in Islamabad. This has a bearing on how the detailed verdict will be produced, as its mechanism was explained above. They will have to write their detailed notes after research.
At present, these judges are doing their research either in Islamabad or in their respective cities and are bringing their notes to writing. Sources say that two judges have not started writing yet. A joint meeting of judges will only be possible when all of them are present in Islamabad after the court summer break ends in the first week of September.
The likely arrival of the verdict in September depends on the way the court machinery works. Consider some background:
A Supreme Court bench is made with a minimum of two judges. Usually, it has three judges to factor in a tie between two. Then, the third judge can tip the scales and a verdict can be reached in a 2:1 ratio. This is why the third judge can be referred to as a “referee” judge in some legal terminology.
A bench with five or more judges is called a “larger bench”. And if there is some important legal problem at stake, the chief justice has the power to form a bench with all the judges of the Supreme Court. This is called a “full” court.
Now, let us turn to how judges reach their verdicts and make up their minds. When there is a hearing, petitioners and their lawyers present arguments in support of their case. The lawyers draw on sections of the law to make their case. They also bring up previous judgments (called precedents) from Pakistani and international courts to buttress their points.
The judges cross-question the lawyers who answer by referring to the law or previous cases.
If the lawyers cannot immediately answer the judges’ questions, they can ask for more time. The lawyers then go back to their chambers and get their team of junior lawyers and associates to dig deeper. Their goal is to present strong enough arguments to win the case for their client.
During the hearings, the judges are also taking notes and can order the lawyers to submit their arguments in writing as well.
But the judges do not only rely on this material to reach their verdicts. In order to understand this, you have to cast a glance on the judges’ teams. The chief justice has a 10-member team and the other judges have four. These teams include the judge’s secretary and personal secretary. Every judge has a legal clerk on two-year contract for research. After every hearing, the judges dictate notes and legal points to their clerks along with questions.
Once a hearing concludes, a short order is produced. Then the law clerks are supposed to do research for the preparation of the detailed judgment. This is where the judges elaborate on why there have either accepted or rejected the petition or case.
Former chief justice Asif Saeed Khosa had formed a research cell during his tenure. It had 12 chosen judges from across Pakistan’s district courts who were tasked with investigations into Pakistani and international verdicts. The Supreme Court judges also take advantage of the research cell when deliberating on their cases.
The research cell and law clerks send the judges their research based on the questions and then the judges on the bench all write their notes.
All the notes are then gathered and the judges meet to deliberate. They each give their opinion on the case and then agree on the name of one judge to write the detailed judgment. If any judge disagrees with the majority of the judges, their opinion is recorded as a dissenting note.
Some judges can add extra notes under their own names as well.