JUSTICE FOR JUDGES
A recent Supreme Court case in Pakistan shows how judges may be targeted when their decisions go against the political establishment
Since last week’s swearing-in of Ayesha Malik as a Supreme Court justice in Pakistan — the first woman in that position — I have wanted to know more about the country’s highest court.
And what a week it was to trawl Pakistan’s judgments, for on Saturday the court delivered a decision with eye-popping evidence of the difficulties faced by that bench, particularly at the hands of the government.
Malik, who joins 16 other judges on the bench, faced considerable uphill in being approved for the position, given that Pakistan’s judiciary — like the rest of the public service — is passionately hierarchical, and she was not the next most senior judge in line.
Her high court decisions have involved both commercial and human rights matters, but she is best known outside Pakistan for her 2020 judgment declaring the “two-finger virginity test”, routinely carried out when women or girls reported rape, unconstitutional.
As to the Supreme
Court she now joins, one of the first things to notice about its latest judgment is the language.
Though the initial paragraphs are full of references to judges and citizens as “he”, it begins with a striking enough declaration: the judgment “must announce loud and clear that noone, including a judge of the highest court in the land, is above the law”. Equally, no-one, including such a judge, “can be denied his right to be dealt with in accordance with law”.
The case deals with a most respected member of the court, Qazi Faez Isa, in line to take over as chief justice in 2023, and his wife Sarina.
Ever since his major judgment holding that the army and intelligence services should stay within their constitutionally mandated areas of operation, Isa and his family have been targeted. His wife was recently visited by two sets of men in plain clothes, claiming to be from “the military” and demanding she provide pages of information for them, including her political affiliation.
The Supreme Court decision is about two major issues: tax, and the court changing its mind about a judgment. It began when President Arif Alvi and Prime Minister Imran Khan filed a complaint against Isa with the powerful Supreme Judicial Council (SJC), which investigates complaints against judges.
Alvi and Khan complained that Isa had not disclosed three London properties, owned by his wife and children, in his tax returns.
When the SJC began inquiries, Isa and many others challenged the president’s reference in the Supreme Court, and the investigation was stopped. However, the court then prepared its own directions for the tax commissioner as to how to proceed with investigating Isa’s family members before giving a report to the SJC.
With the support of a wide variety of legal organisations and others, Isa again challenged that outcome, and persuaded the Supreme Court to review its earlier decision.
Revised opinion
This time around, the judges found that “courts are as much human institutions as any other and share all human susceptibilities to error”. The majority (the minority’s decisions are not yet available) found a slew of errors in its earlier decision — not allowing Sarina Isa the right to be heard, for example, and referring the outcome of her tax matter to the SJC for action against Isa, even though he was not concerned with her tax matters.
It also emerged that Alvi’s sudden complaint to the SJC related to tax queries that were well over the five-year limit, and that the complaint “blatantly breached” the confidentiality guaranteed to taxpayers.
The majority further suggested that the case attempted to smear a judge of “unblemished character” and “impeccable integrity”.
The story isn’t necessarily over yet, with some officials suggesting they might try for another review.
Contemplating all this, the court’s newest member could well be wondering if her appointment is the judicial equivalent of a poisoned chalice.
The case attempted to smear a judge of ‘unblemished character’ and ‘impeccable integrity’