INSIGHT: Reckoning Law On Assets Abroad and Judges ‘Outing’

The difference between discipline albeit surrender to authority and public grandstanding is absence of the former and creep of street power

PKONWEB — THE all-powerful lawyers representative bodies across the country have convened their meetings after Eid to devise future strategy on two Judges’ ( Justice Qazi Faez Isa and Justice Karim Khan Agha) references– the government has moved the Supreme Judicial Council (SJC) to deseat these judges on grounds of concealment of assets abroad.

Most of the legal fraternities bodies and opposition parties have opposed the move, terming it an effort to undermine the ‘independence of judiciary’– a constitutional issue regarding trichotomy of power and checks and balances flowing from the fountainhead.

Considering the steps taken by the government as out of line and length, the opposition-dominated Senate last week adopted a resolution demanding withdrawal of the references against the two judges.

The Senate expressed grave concern over filing of references against the two judges by the president “in a secretive way” while the judges concerned were unaware of the move, is another issue (operational) raised by the Senators, and therefore prima facie malafide they claim.

The Senate resolution also pointed out that the filing of references had caused split in the bar and led to resignation of the additional attorney general– an observation which is beyond legal threshold with no bearing on the merit or demerit of the reference.

The Senate has also speeded up to express solidarity with “the judges under siege”, lawyers’ elected representatives and the bar councils and demanded withdrawal of these references which smacks of due process of law.

Party politics and pressure groups’ grandstanding aside, the government said that  it had received certified copies from the land registries of the assets in the United Kingdom properties owned by the two learned judges of the superior courts. On that basis, references had been filed against them before the Supreme Judicial Council (SJC) as per the Constitution.

No other individuals but spokespersons for the Ministry of Law and Justice and the Assets Recovery Unit (ARU) of the Prime Minister’s Office said so in a joint statement on Sunday.

The certified copies were duly attested by the High Commission of Pakistan in the UK and notarized in London, it has emerged.

The spokespersons also clarified that the ARU detected properties of Pakistanis aboard and reported them to the respective departments. Collaterally, they said, the ARU also received complaints with regard to existence of Pakistanis’ properties abroad and once any complaint was received, the ARU was duty-bound to take an appropriate action.

The ARU received a complaint/information in respect of the foreign properties of three learned judges. Under the Rules of Business 1973, the matters pertaining to judges fall under the umbrella of the Ministry of Law and Justice and hence the complaint/information was placed before the ministry for an appropriate action,” they said.

The spokespersons said the law ministry then directed the ARU to verify the contents of the complaint, clearly suggesting that action would only be taken once verification was received.

Accordingly, they said, the ARU conducted verification and “was able to receive certified copies from the land registries of the relevant assets”.

“This information was laid before the SJC, in terms of two references duly concurred upon by the learned Attorney General of Pakistan (AGP), their excellencies the Prime Minister and the President of Pakistan, strictly in terms of the law and the Constitution, in particular Article 209 of the Constitution,” they said.

“Once having received the complaint/information in question, had the ARU, the AGP, the Ministry of Law and Justice, the prime minister and the president omitted to lay the said information before the SJC, they would have [been] alleged to have derelicted their duties,” they said.

The ARU, the law ministry, the PM and the president reiterated their commitment to upholding the law and the Constitution with an emphasis on keeping the judiciary in the highest esteem, the spokespersons concluded.

The law ministry had earlier explained that the ministry on its own had no mechanism to look into the assets of any judge and, therefore, was bound to process complaints it received from the ARU and the FBR in the best interest of the country.

It said the ministry believed in upholding the rule of law and would continue to do so.

The SJC had issued a notice to the federal government through the attorney general regarding references filed against Justice Qazi Faez Isa and Justice Karim Khan Agha for hearing on June 14.

The references accuse the two judges of concealing their assets and recommend action against them under Article 209 of the Constitution.

The matter is now subjudice before the judicial council which is expected to also follow the procedures and decide upon the matter.

Without prejudicing the loci, merit of the reference (most important), and rules of procedures followed or not (technical), the due process of law is generally followed sans the he-said-she-said background chatters. Or considering bending the anti-assets concealment law a bar lower than the edifices and their habitats.

There are numerous legal discourses and citations on such related matters (google them). One such: “It is true that judges in the US have absolute immunity from any lawsuit for damages arising from their performance of judicial functions. This applies even if those actions were corrupt, malicious, or illegal. The only exceptions to a judge’s immunity to a lawsuit is if the conduct alleged was not a judicial action, or if the judge was acting in the complete absence of all jurisdiction.” See, among others, Mireles v. Waco502 U.S. 9.

We ought to let due process of law take its course rather than become virtual juries in our court.

We find ourselves again at a crossroad between the rule of law and the media/civil society perceptions. High moral authority is need of the hour “even if heavens fall”. That did not happen though when the Army Act recently came down hard upon two brass-tacks who spied on the nation and could not get away with it. Imagine they had belonged to the most powerful fraternity in the country.

The difference between discipline albeit surrender to authority and grandstanding is absence of the former and creep of street power.