The current government’s legal team on withdrawing the therapeutic review petition against the Supreme Court’s order of April 26, 2021 in the case of Judge Qazi Fayez Isa, is divided, with one section wanting to keep the petition pending and await Judge Maqbool Baqer’s retirement on April 4.
Legal experts believe that the role of the current Chief Justice Omar Atta Bendial will be important in the therapeutic review petition against the order of April 26, 2021. They wonder if the opinion of the Chief Minority Judge in referring the case to the Supreme Judicial Council will spark new controversy.
Last year, a senior government official claimed in an off-the-record conversation that Judge Issa was having a hard time within the judiciary, not “powerful circles.”
Senior lawyers fear a deepening of polarization within the judiciary after the remarks made in the minority ruling. They expect that in order to find out the truth, the Chief Justice will take notice of his own accord regarding the allegations against former Chief Justice Saqib Nassar for his manipulation of judicial proceedings in the Panama case. The short majority order overturned an earlier June 19, 2020 order authored by Judge Bandial.
On April 26, 2021, Supreme Court justices overturned the Federal Board of Revenue’s (FBR) action against the judge and his report on the matter. The majority ruling, delivered on January 29, had accepted the review petitions of Judge Issa and his wife by a 6:4 vote against the order of June 19, 2020.
Sources told The Express Tribune that Prime Minister Imran Khan held a meeting with members of his legal team last week to discuss the situation after the detailed majority ruling in the case. It was learned that the Attorney General of Pakistan Khalid Javed Khan and Senator Ali Zafar advised the Prime Minister to withdraw the CPR petition as there was nothing against the government in the detailed ruling. However, Law Minister Dr. Farouk Nasim, who was participating in the meeting via video link, opposed withdrawing the petition.
He had told the Chief Minister that both the AGP and Ali Zafar were unaware of the exact situation, which he would explain to him separately. But legal experts say controversy will resurface over Judge Issa after the minority ruling. It seems, they say, that the Minister of Law expected that minority rule would severely damage the moral authority of Judge Issa. Therefore, he opposed the motion of other members of the legal team to withdraw the petition for therapeutic review.
Senior lawyers expect that another step to overthrow Judge Issa will begin in April, after Judge Baqer’s retirement. They say that without the support of the judiciary, the government’s efforts to remove Judge Isa before he becomes the new Chief Justice will fail.
Earlier, the Office of the Registrar of the Supreme Court, during a remedial review, raised seven objections. The Registrar’s Office said there was no provision for filing a petition for therapeutic review in the Supreme Court.
The PTI-led federal government alleged that the Supreme Court’s decision in April to accept Judge Qazi Faiz Isa’s review petition against the judgment of 19 June 2020 had closed the door to judicial impeachment and that the matter “suffers from actual bias and reasonable perception of bias”. By a vote of 6 to 4, the Supreme Court on April 26 accepted the petitions to review Judge Isa and others against the Supreme Court’s division order of June 19, 2020 in which the Court ordered the FBR to conduct an investigation into the foreign assets of Judge Isa’s family members.
The Federal Court also ordered the FBR to submit its report to the Supreme Judicial Council (SJC) – a constitutional forum that can hold a Supreme Court judge accountable – which could theoretically revive a presidential reference seeking to remove Justice Isa. However, in an April 26 order, the Supreme Committee rescinded the FBR inquiry report.
Later, the government filed a ‘remedial review’ against the verdict on behalf of the federal government, President Dr Arif Alvi, Prime Minister Imran Khan, Law Minister Dr Farooq Naseem, Adviser to the PM on impeachment Mirza Shahzad Akbar and FBR legal expert Zia Mustafa Naseem.
However, the Supreme Committee’s registration office reinstated the remedial review after some objections were raised.
Government employees have now lodged an appeal in the Chamber against the Registry Office’s objections, citing dozens of reasons for revising the April 26 court order. Some public servants are unhappy with the contents of the remedial review petition, which accused the majority judges of bias. Harsh language is used in the appeal against the Registrar’s Office objections.
To make their case on bias, the government referred to a newspaper article which claimed that two Supreme Court justices had written a letter to the then Chief Justice of Pakistan Gulzar Ahmed, asking him to make them part of Justice Isa’s larger hearing review petitions against the June 19 order.
On May 18, she said, the additional public prosecutor wrote a letter to the then Chief Justice of the Supreme Court, asking him if such a letter existed.
He had also asked the AKP at the time to provide a copy of the letter, if it was written at all. However, the existence of such a letter was not denied or its version presented. “The news report corroborates the reasons for bias and the reasonable perception of bias held by the appellants in the petition,” reads the government’s appeal in the chamber.
The government said the April 26 order was unconstitutional, illegal, against the basic rights of the public at large, and repressive. Therefore, he added, the matter is subject to reconsideration, review and recall. “It is against the independence of the judiciary and its accountability,” she added.
“The impugned order of the majority under review has adequately closed the doors to judicial accountability in general and to Judge Isa’s accountability in relation to the allegations and information that have been recorded,” reads the review petition returned by the Office of the Registrar of the Supreme Court.
In its appeal to the Chamber, the government said that the standards of judicial accountability have been relaxed, and a shield has been provided for judges of higher courts to hide behind the principle of judicial independence in order to evade judicial accountability.
The concept of judicial independence does not mean protecting the interests of individual judges. The majority ruling in the review petition came against Islamic jurisprudence and the ethical principles of judges’ conduct.” He had said that the majority order usurped the role of the Supreme Judicial Council in acquitting Judge Isa. The government asserted that Judge Isa and his wife Isa did not appear in court with “clean hands.”
“By failing to answer the three questions put to Judge Isa by the Court, the clear and sufficient connection of Judge Isa to his wife’s bank account in foreign currency from which payment was made for the acquisition of the London property has been established.”
The government denied that obscene language was used in the treatment review petition. She added that such language can be found in many of the judgments that have been reported, and with regard to the objections in the Office of the Registrar of the Supreme Court to the various prayers in the petition for the therapeutic review, the appeal read that there are nine prayers in the petition for the review of Judge Isa’s wife, Sarina Issa, but the institutional branch of the Supreme Court did not object to it.