Justice Qazi Faiz Esa Case: SC issued Mansoor Ali Shah’s

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Islamabad: Supreme court of Pakistan issued dissenting note of Justice Mansoor Ali Shah in Justice Qazi Faiz Esa case which is consist of 268 pages.

Complete text of dissenting note of Justice Mansoor Ali Shah.

Const. P. No.17 of 2020, etc. 1
Syed Mansoor Ali Shah, J.-
Introduction
While it appears that this case is about the independence
and accountability of a judge, it is truly about the independence
and accountability of our institutions. It raises the questions: Are
we governed by the Constitution and the Rule of Law or can the
Government of the day conveniently get off the constitutional rails
to suit its ends and come prying into the private lives of its citizens
in disregard of their constitutional rights? Can a Special Assistant1
to the Prime Minister, acting as Chairman, ARU,2 assume a role
larger than the statutory institutions of the State and spearhead
investigation and surveillance into the life and conduct of a judge
of the highest constitutional court, sidestepping the prescribed
constitutional process? Can the Special Assistant wield power over
statutory institutions like FBR, NADRA and FIA without any
sanction of law? Can a Law Minister, ignore the law, the
Constitution and the statutory institutions of the State and permit
ARU to entertain, investigate and collect evidence on a private
complaint against a constitutional court judge? Is the Law Minister
justified to place a Summary based upon the evidence so collected,
before the Prime Minister for approval? Is there a level of
responsibility expected of the Prime Minister, who is the Chief
Executive of the Federation and Head of the Cabinet, in approving
Summaries placed before him? In a matter no less serious than the
removal of a judge of the highest court in the land, was the Prime
Minister required to inquire how the “information” placed before
him was collected and whether the information collected actually
made out a case of “misconduct” against the Petitioner Judge or is
the Prime Minister to impetuously approve Summaries without any
application of mind? Can Government in a constitutional
democracy be driven by personal bias, malice, intolerance and
bigotry or should an institutional process run it with collegiality,
transparency, fairness, openness, diversity and inclusiveness as its
hallmarks? Are we to expand our frontiers of freedom as we mature
into a democracy and strengthen our constitutional guarantees

1
The substantive legal post of Chairman, ARU, is that of a Special Assistant to the Prime
Minister.
2
Asset Recovery Unit ( discussed in detail later)
Const. P. No.17 of 2020, etc. 2
with renewed confidence and enthusiasm or regress into darkness
by permitting unconstitutional acts that allow muffling of a critical
judicial voice in the name of judicial accountability? This case
makes us think, whether we want our future generations to
descend into a dystopia or grow up into a vibrant democracy with
an understanding and conviction that “in a democracy, the State is
neither with us nor against us. It is us.”3

  1. I concurred with the conclusion of the Majority recorded in
    the Short Order dated 19.6.2020, whereby the Reference filed
    against Justice Qazi Faez Isa was quashed and the subsequent
    proceedings before the Supreme Judicial Council stood abated. I
    have gone through the Majority Judgment and, with respect, hold
    a different view of the Constitution, the law and the facts of the
    case and have been unable to subscribe to the logic and reasoning
    of the Majority view. I have, therefore, penned my own reasons for
    quashing the Reference. I am also unable to agree with the
    directions4 issued by the Majority in the Short Order and have
    given reasons for my dissent later in the judgment.
    Judicial Independence and Judicial Accountability
  2. “I have always thought…that the greatest scourge of angry
    heaven ever inflicted upon an ungrateful and a sinning people was
    an ignorant, a corrupt or a dependent judiciary,” said John
    Marshall.5 Judicial independence and judicial accountability are
    two sides of the same coin and one cannot co-exist without the
    other. Therefore, to compromise on judicial accountability is to
    compromise on our freedoms guaranteed under the Constitution;
    the Rule of Law; Independence of Judiciary; and Democracy itself.
    We all know that the court cannot buy support for its decisions by
    spending money or use force to coerce obedience of its decrees. The
    court’s power lies in its legitimacy, a product of substance and
    perception that shows itself in the people’s acceptance of the
    judiciary as fit to determine what the law means and to declare
    what it demands. The court’s concern with legitimacy is not for the
    sake of the court but for the sake of the nation to which it is

3
Jonathan Sumption, Trials of the State: Law and the Decline of Politics (2019).
4
Paragraphs 4-11 of the Short Order dated 19.06.2020.
5
Fourth Chief Justice of the United States Supreme Court (1801-1835) – see Fazal Karim, Judicial
Review of Public Actions, p.282, Vol-1 (2nd ed.).
Const. P. No.17 of 2020, etc. 3
responsible.6 Foundations of judicial institution stand on public
confidence and public trust that lend it legitimacy and public
acceptance. Institutional legitimacy of the judiciary, in turn, is
grounded in judicial integrity of the judges. According to John
Marshall, ignorance, corruption and dependence of a judge are the
evils that tarnish judicial integrity; Our Constitution also lays
down the measure of judicial integrity of a judge. While taking oath
a constitutional court judge makes a solemn promise before God
that he will discharge his duties and perform his functions
honestly and faithfully in accordance with the Constitution and the
law; that he will not allow his personal interest to influence his
official conduct or decisions; that he will abide by the code of
conduct issued by the Supreme Judicial Council; and that he will
always preserve, protect and defend the Constitution. This is the
constitutional requirement of judicial integrity. A judge is to always
tread the path of the Constitution and the law, must possess
strength of character to never give in to external influence for
personal benefit, and must be bold and courageous to always
stand for the Constitution and to preserve, protect and defend it.
Any compromise on this sacred promise with God, is to comprise
judicial integrity.

  1. While judicial accountability is critical for upholding the
    legitimacy of the judicial institution, equally important is the right
    of a Judge to enjoy the protection of law and to be treated in
    accordance with law. Judicial accountability, like any other
    accountability, must be according to the standards of due process
    guaranteed under Article 4 of the Constitution. We must
    remember that public confidence and public trust in the legitimacy
    of the judicial institution can only be attained when judges decide
    without fear or favour, in accordance with law, even while sitting in
    judgment over the affairs of their own colleague. While dealing with
    judicial accountability we are not to project a forced image of selfaccountability to win accolades of the public or make extra effort to
    win over public confidence. We are to simply decide in accordance
    with the Constitution and the law – come what may.

6
see: Planned Parenthood v. Casey, 505 U.S. 833 (1992)
Const. P. No.17 of 2020, etc. 4
Brief Facts

  1. Justice Qazi Faez Isa (“Petitioner Judge”) being part of a two
    Member Bench of this Court authored judgment in Suo Motu Case
    No.7 of 2017, known as Faizabad Dharna case,7 decided on
    February 6, 2019, and made certain observations therein as to
    the 2014 Dharna of the current main ruling political party (PTI),
    the role of the coalition ruling party (MQM) at the time of Karachi
    incident of 2007, and the interference by the Military Intelligence
    Agencies in politics and freedom of Media. It was also directed in
    the judgment that proceedings should be taken against military
    officers who had violated their oath of office by engaging in political
    activity. Several review petitions were filed against that judgment,
    including the petitions by the PTI, MQM, and Ministry of Defense,
    Government of Pakistan, in March, 2019. The Ministry’s petition
    sought for expunction of the observations and directions made
    regarding the Military Intelligence Agencies and its officers. The PTI
    and MQM (the political parties currently in Government), in their
    review petitions, asserted that the Petitioner Judge by making the
    objectionable observations in the judgment had violated his Oath
    of Office and Code of Conduct for Judges and was liable to be
    removed from office under Article 209 of the Constitution. This
    assertion of removal was made only against the Petitioner Judge,
    and not against the other learned Member of the Bench.
  2. Soon thereafter, one Abdul Waheed Dogar (“Complainant”)
    made a complaint titled “Accountability of Judges” to the Asset
    Recovery Unit (“ARU”), housed in the Prime Minister’s Office, on
    April 10, 2019, against the Petitioner Judge and two other judges
    of the constitutional courts. The complainant alleged that these
    judges owned offshore properties. A meeting of the ARU was held
    on April 15, 2019 to discuss the complaint at the residence of the
    Chairman, ARU in the Minister’s Colony, Islamabad, and it was
    decided in that meeting that since the matter pertained to the
    Judges of Superior Judiciary the opinion of the Law Minister
    should be sought. The Chairman and certain Members of the ARU
    met the Law Minister in his office on April 16, 2019 who advised
    orally that before taking any further action, the ARU should check

7
PLD 2019 SC 318.
Const. P. No.17 of 2020, etc. 5
the veracity of the allegations contained in the complaint. No
formal correspondence took place between the ARU and the Law
Ministry, in this regard. The Chairman, ARU, after that meeting,
tasked Barrister Zia Naseem, Legal Expert of the ARU, to verify the
property details attached with the complaint, and further conduct
a wider property search in the names of persons mentioned in the
complaint and of their family members. He also tasked Mr.
Muhammad Rizwan, Member of the ARU from FIA, to obtain
identification documents of persons mentioned in the complaint,
copies of their CNICs and passports, all visas, if any, family tree
and travel history. On the suggestion of Mr. Muhammad Ashfaq
Ahmad, Member of the ARU from FBR, the Chairman decided to
forward the complaint through a formal letter to the Chairman,
FBR for assessment and analysis into declaration of assets of
persons mentioned in the complaint. The Legal Expert of ARU
submitted his report about UK properties in the name of the
spouse and children of the Petitioner Judge, on May 8, 2019. The
Member of ARU from FIA submitted his report on May 10, 2019.
Assistant Commissioner (IR), Commissioner (IR), and DG,
(International Taxes)/Member of ARU from FBR, all three,
submitted their reports on May 10, 2019. The Chairman, ARU
then made his final Report on May 10, 2019 after examining all
the reports and record submitted to him by the Legal Expert and
Members of the ARU, and dispatched it to the Law Minister on the
very same day, i.e., May 10, 2019. The Report also mentioned a
meeting of the Chairman, ARU with the complainant held to
inquire into the allegations made in the complaint.

  1. The Chairman, ARU thus investigated the complaint; located
    properties in the UK, and obtained reports regarding record of the
    Petitioner Judge and his family from the FBR, NADRA and FIA. He
    found that there were three properties in the names of the spouse
    and children of the Petitioner Judge in UK having been purchased
    in the years 2004 and 2013 and that those properties had not been
    declared by the Petitioner Judge and his family in their tax
    returns. One property was initially reported to have been
    purchased in 2011, but later on after filing of the Reference it was
    reported to have been purchased in the year 2004. The Chairman,
    ARU did not consider it fit to inquire into the alleged properties of
    Const. P. No.17 of 2020, etc. 6
    one other judge mentioned in the complaint after noting in the
    minutes of meeting held on April 16, 2019 that the said judge had
    already resigned.
  2. The Chairman, ARU, as mentioned earlier, submitted his
    report of the said investigation conducted on the complaint to the
    Law Minister on May 10, 2019. The Law Ministry, made a
    “Summary for the Prime Minister”, on May 17, 2019, proposing to
    the Prime Minister to advise the President, under Article 48(1) of
    the Constitution, to form an opinion that the Petitioner Judge may
    be guilty of misconduct and direct the Council under Article 209(5)
    of the Constitution to inquire into the matter. The basis for the
    proposal was stated in the Summary as under:
    “A judge of the Superior Court who omits to intentionally declare
    three expensive London properties jointly owned by his spouse
    and children, violates Section 116 of the 2001 Ordinance. The
    tax records of the learned Judge and his spouse are absolutely
    silent about the sources through which the said properties had
    been acquired and how and from where the funds were made
    available to purchase the said properties, without violating the
    money laundering regime and the Foreign Exchange Regulation
    Act, 1947. The said mis-declaration seems glaring. Thus, the
    said Judge i.e. Justice Qazi Faez Isa appears to have committed
    gross misconduct and is liable to be removed upon the
    recommendations of the Supreme Judicial Council in terms of
    Article 209 of Constitution.”
    The draft Reference was also annexed with the Summary. On the
    same day, i.e., May 17, 2019 the Prime Minister, accordingly,
    advised the President to form his opinion, direct the Council and
    sign the draft Reference. The President approved the Prime
    Minister’s advice and signed the Reference on May 20, 2019. The
    Secretary, Ministry of Law and Justice forwarded the Reference to
    the Supreme Judicial Council (“Council”) on May 23, 2019. The
    Secretary, Council placed the Reference before the Chairman,
    Council, on May 29, 2019, and the Chairman, Council made an
    order to convene the meeting of the Council for June 14, 2019 to
    consider the matter. Even though the matter had not yet been
    taken up in the meeting of the Council for preliminary
    consideration, several newspapers published the filing of the
    Reference and the allegations made therein against the Petitioner
    Judge on May 28, 29, 30, 31, and June 1 and 3, 2019. Later
    during the proceedings before the Council the matter was
    Const. P. No.17 of 2020, etc. 7
    discussed in press conferences and TV talk shows by the
    Government Ministers and even by the President of Pakistan.
    Issues
  3. The constitutional and legal issues I would address are as
    follows:
    i. Could the Asset Recovery Unit (ARU) entertain and
    investigate a complaint against the conduct of a
    constitutional court judge under the law and Constitution?
    ii. Was the ARU established with lawful authority under the law
    and Constitution? And what was the legal status of its
    Chairman?
    iii. Did the ARU collect evidence in support of the allegations
    made in the complaint against the Petitioner Judge in
    accordance with the law and Constitution?
    iv. If the answer to the above question is in the negative, could
    the Law Minister and the Prime Minister rely and act upon
    such evidence?
    v. Was the President to form his independent personal
    “opinion”, or to form the “opinion” on and in accordance with
    the advice of the Prime Minister, under Article 209(5) of the
    Constitution, on the “information” placed before him?
    vi. Could an opinion as to the commission of misconduct be
    reasonably made against the Petitioner Judge, on the
    “information” given in the “Summary” and material annexed
    therewith?
    vii. Does publicizing the act of sending the Reference against the
    Petitioner Judge and of the contents thereof attract
    proceedings under Article 204 of the Constitution and
    Contempt of Court Ordinance, 2003?
    viii. Were the acts of entertaining the complaint, inquiring into
    and collecting evidence on the allegations, and making and
    filing of the Reference against the Petitioner Judge, malafide?
    I endeavour to deal with these issues as per my humble
    understanding of the law and Constitution.
    Constitutional Process for Removal of a Constitutional Court Judge
  4. Article 209 of the Constitution provides the process for the
    removal of a constitutional court judge. A special constitutional
    forum – Supreme Judicial Council – has been vested with the
    exclusive jurisdiction under the Constitution to inquire into the
    capacity and conduct of a constitutional court judge, and
    Const. P. No.17 of 2020, etc. 8
    recommend his removal. The Council is a collegium of judges
    headed by the Chief Justice of Pakistan and consisting of two next
    most senior judges of the Supreme Court and two most senior
    Chief Justices of High Courts. The process of the Council is set in
    motion when “information from any source” against a
    constitutional court judge reaches the President or the Council.
    Either of the two gatekeepers, as the case may be, principally
    verifies and assesses the gravity of the allegations and forms an
    “opinion” whether the matter calls for “inquiry” into the capacity or
    conduct of the judge by the Council.
  5. The proceedings before the Council, its report to the
    President and the removal of the judge by the President under
    Article 209 cannot be called in question in any court of law under
    Article 211, unless the removal of the judge is without jurisdiction,
    malafide or coram non judice. A limited judicial review on these
    three grounds is not affected by Article 211, as no ouster clause
    can keep the actions taken without jurisdiction, malafide or coram
    non judice, beyond the scrutiny of the constitutional courts.8
    Article 211 gives immunity to proceedings before the Council till
    the removal of the judge by the President. However, proceedings
    and steps taken before the matter lands before the Council escape
    the immunity under Article 211. In the present case, there were
    several steps that preceded the proceedings before the Council: the
    filing of complaint (‘information’) by the complainant before the
    ARU; the entertainment of the complaint by the ARU; the mode
    and manner of dealing with the complaint by the ARU and Law
    Ministry; the investigation and collection of evidence to supplement
    and document the complaint by the ARU; the preparation of
    “Summary” for making the Reference by the Law Ministry; the
    advice of the Prime Minister on the Summary; and the approval of
    that advice by the President. All these acts preceded the
    proceedings before the Council and are not hit by the ouster clause
    of Article 211. They are, therefore, subject to standard judicial
    review like any other executive or administrative act, on the
    grounds of substantive illegality, procedural impropriety and

8
see CJP Iftikhar Chaudhry v. President of Pakistan, PLD 2010 SC 61, per Khalil-ur-Rehman
Ramday, J, paras 78, 80, 83 and 85.
Const. P. No.17 of 2020, etc. 9
decisional irrationality.9 In a democracy governed by the rule of
law, where arbitrariness in any form is eschewed, no Government
or authority has the right to do whatever it pleases; where the rule
of law prevails, there is nothing like unfettered discretion or
unaccountable action.10 It is, however, underlined that a Reference
competently filed by the President against a constitutional court
judge should not ordinarily be made subject to scrutiny in judicial
review by any Constitutional Court including this Court, unless
the extraordinary circumstances demand such intervention in the
interest of justice and fair play.11

  1. While a citizen (a private person) can always directly
    approach these forums by placing the information before them, it
    is important to understand how the Government (Federal,
    Provincial or Local) or its Ministries, Divisions, Departments and
    officials place such “information” or complaint against a judge of a
    constitutional court before the President. Can any Ministry,
    Division, Attached Department or Department of the Government
    on receiving any information against a constitutional court judge,
    entertain it and proceed with it, or start collecting evidence or
    verify the contents of the complaint? The answer to this is in the
    negative in the light of Article 209(7) of the Constitution, which
    mandates that the only constitutional forum available to inquire
    into the conduct or capacity of a constitutional court judge is the
    Council. So the Governments, its Ministries, Divisions,
    Departments or Attached Departments and their officers are not
    authorized to entertain any complaint against a constitutional
    court judge, let alone proceed and collect evidence to supplement
    the complaint. They can at best return the complaint to the
    complainant and guide him to approach the constitutional forums
    under Article 209 of the Constitution.
  2. Let us take a situation where any Ministry, Division,
    Attached Department or Department of the Government, in the
    course of its normal business, discovers some adverse information
    against a constitutional court judge that may attract impeachable
    misconduct, in addition to the legal proceedings under the relevant

9
See Ibid, para 70.
10 see State of W.B v. Debasish Mukherjee, (2011) 14 SCC 187.
11 See CJP Iftikhar Chauhdry case (supra), Per Muhammad Nawaz Abbasi, J. p.215.
Const. P. No.17 of 2020, etc. 10
law. The concerned Department etc., in such situation, should at
first proceed against the constitutional court judge on the basis of
the adverse information in accordance with the law under which it
functions. For example, if it is the FBR that discovers such an
information, it can proceed against the judge under the tax laws
and the judge will have a right to defend himself in accordance
with law. Only when these proceedings come to a close after
exhausting all the legal and judicial avenues and it is finally held
that the judge has violated the law, the FBR may, in the interest of
judicial accountability, send this information to the Federal
Government through the Division with which it is attached under
the Rules of Business, 1973 (“ROB”) for information and necessary
action. It will then finally rest with the Federal Government i.e., the
Cabinet, to decide if the violation of law amounts to impeachable
misconduct and whether the Federal Government should proceed
against the constitutional court judge and place the “information”
before the President. Such process finds its justification from the
foundational constitutional principles like independence of
judiciary, rule of law and parliamentary democracy.
Entertainment of Complaint by ARU

  1. First and foremost, the complainant could only have
    approached the constitutional forums provided under Article
    209(5) of the Constitution and could not have filed the complaint
    before any other office or authority. Therefore, the very act of
    approaching the ARU was per se unconstitutional and illegal. It is
    noted with concern and suspicion that how did the complainant, a
    citizen of this country, plan on filing the complaint against a
    constitutional court judge before the ARU, which had no public
    interface or the legal mandate to deal with such a matter and had
    earlier never conducted any inquiry for the accountability of a
    constitutional court judge. There is surprisingly nothing on the
    record to show how the complainant found out about ARU. The
    ARU was not a Ministry or Division of any Ministry of the Federal
    Government, or an Attached Department, neither was it a
    statutory authority nor had the notification of its establishment
    been published in the official gazette for public information. The
    ARU, therefore, for all practical purposes did not legally exist for
    the world outside the Prime Minister’s Office. However, the
    Const. P. No.17 of 2020, etc. 11
    complainant instead of approaching the Council, which would have
    ordinarily come to the mind of a citizen, particularly in view of the
    publically known recent removal of a High Court Judge by the
    President on the recommendation of the Council,12 approached the
    ARU for the accountability of judges. This looks more odd
    especially when the complainant claims to be a journalist. Such an
    unusual step by the complainant raises eyebrows about the
    credibility of the complaint and the bonafide of the complainant.
    Legal Status of ARU
  2. The ARU was established by the Cabinet vide Notification
    dated 06.11.2018. The Federation has defended the establishment
    of the ARU by the Cabinet, by referring to the provisions of Rules
    4(5) and 16(1)(m) of the ROB. The submission made on behalf of
    the Federation was that Rule 4(5) empowers the Prime Minister to
    establish agencies and offices for conducting the business of the
    Federal Government, and under Rule (16)(1)(m) the Cabinet has
    power to decide any matter referred to it by the Prime Minister. The
    Prime Minister referred the matter of establishing the ARU to the
    Cabinet, and the Cabinet thus competently approved the
    establishment of the ARU. Rules 4(5) and 16(1)(m) of ROB are
    reproduced here for ready reference:
  3. Organization of Divisions.
    ……………………………………………………………………..
    (5) The business of Government, other than the business done in
    the Federal Secretariat or the Attached Departments, shall be
    conducted through such agencies and offices as the Prime
    Minister may determine from time to time.
  4. Cases to be brought before the Cabinet.–(1) The following
    cases shall be brought before the Cabinet:-
    ……………………………………………………………………………………
    ……………………….
    (m) any case desired by the Prime Minister to be referred to the
    Cabinet.
    Bare reading of the provisions of Rule 4(5) makes it clear that the
    said Rule does not empower the Prime Minister to establish new
    agencies or offices; it simply authorizes him to refer the business of
    the Government to already established agencies and offices under
    the law. The word “determine” has been used in the Rule in the
    context of allocation or entrustment of the business of Government
    and not for the power to establish a new agency or office. In the

12 Justice Shaukat Siddiqui’s case, Report of the Council dated 11.10.2018.
Const. P. No.17 of 2020, etc. 12
absence of any power to establish a new agency or office, reference
of the matter to the Cabinet under Rule 16(1)(m) by the Prime
Minister is inconsequential, as the Cabinet also does not enjoy any
such power. The scope of the ROB made under Article 99(3) of the
Constitution cannot extend to creation of agencies or offices to
perform functions in relation to any matter to which the executive
authority of the Federation extends. Such agencies or offices can
be established only by or under some law enacted by the
Parliament on the subject over which it has the legislative power
under the Constitution. The creation of the ARU by the Cabinet,
cannot be sustained treating it as an Attached Department of the
Cabinet Division also. The Departments that have been declared as
Attached Departments to particular Divisions are created by or
under the law, and not by the Federal Government.13 The Federal
Government, as per Rules 2(1)(ii) and 4(4) of ROB, can only declare
them attached with a particular Division, but cannot create them.
The Terms of Reference (TORs) of the ARU define its role and
powers. The ARU does not pass as a coordinating agency or office
under the TORs for the following reasons: first, as per its
Notification it was established as an entity separate from the
Departments whose officials have been made its Members and also
addressed as such in its TORs; second, there is no mention of its
coordinating role in the TORs; third, the powers and functions
have been prescribed in the TORs as that of the ARU, and not of its
Members; and fourth, but most importantly, the ARU was
conferred such wide and extensive powers which even its Members
did not enjoy under the laws of their parent institutions, e.g., it
was empowered to request any intelligence agency under the
Government of Pakistan for assistance in obtaining any
information on any subject within and outside the country,14 and
authorized to seek assistance and information from Law
Enforcement Agencies and other Government Departments,
including the information relating to bank accounts, companies
record, revenue record, travel record, NADRA record etc.15 With
such intrusive investigative powers, the ARU cannot be said to be
an innocuous coordinating agency, office or unit. The

13 See ROB, Schedule III.
14 TOR No. 7.
15 TOR No.8.
Const. P. No.17 of 2020, etc. 13
establishment of the ARU was, therefore, absolutely without lawful
authority, and is hereby so declared. In the absence of any legal
status of the ARU, its Chairman and Members also have no legal
position or status.
Budgetary Status of ARU

  1. It is important to see how the ARU was being funded. Were
    the funds allocated for the functioning of ARU duly reflected in the
    Annual Budget? Funds can be allocated for any Government
    activity only by the National Assembly in the Annual Budget
    Grants under Article 82(2) or supplementary and excess budget
    grants under Article 84 of the Constitution. The Annual Budget
    Statements for the financial years 2018-19 and 2019-20 do not
    mention the allocation of any budget for the expenditure of ARU.
    The power of the Federal Government, i.e., the Cabinet, under
    Article 82(3) is only recommendatory, and provisional under Article
    84, both are subject to the assent by the National Assembly. The
    amounts as approved in the budget passed by the National
    Assembly can be utilized only for the purpose specified in the
    budget statement. Any re-appropriation of funds or their utilization
    for some other purpose is not justified under the Constitution; for
    this purpose, the supplementary budget statement has to be
    placed before the National Assembly following the procedure
    provided in Article 84 of the Constitution. Persons making the
    unauthorized expenditure from the Federal Consolidated Fund are
    personally responsible for that expenditure.16 The ARU, therefore,
    had no budgetary support and therefore does not pass for an
    executive authority. In this background, role of the ARU becomes
    more suspicious and raises the questions: who funded the
    investigation and the transnational surveillance of the Petitioner
    Judge; who paid for the Law Expert of the ARU; who paid for
    collecting information from the UK HM Land Registry or 192.com,
    which are not open source, as one has to pay and register to
    access information; who was funding the entire operation. These
    unanswered questions cast doubts on the bonafides of the

16 See Case of Action against Distribution of Development Funds, PLD 2014 SC 131; Mustafa
Impex v. Govt. of Pakistan, PLD 2016 SC 808 and Ram Jawaya v. State of Punjab, AIR 1955 SC


  1. Const. P. No.17 of 2020, etc. 14
    Government and the Prime Minister, the Chief Executive of the
    Federation.
    Legal Status of the Chairman, ARU
  2. The appointment of the Chairman, ARU by the Cabinet is not
    backed by any law including any rule of the ROB. Even otherwise,
    the ROB made under Article 99(3) of the Constitution cannot
    provide for creation of posts in connection with the affairs of the
    Federation. Such power must be conferred by some law enacted
    under Article 240(a) of the Constitution. Article 99(3) empowers the
    Federal Government to make rules only on two subjects: firstly, for
    the allocation of the business of the Federal Government to its
    different components, i.e., the Ministries; and secondly, for the
    transaction of that business. The Rules made under this power can
    regulate the procedural modalities of allocation and transaction of
    the business, i.e., by which Ministry or Division of a Ministry and
    how a matter is to be taken up and dealt with; such Rules cannot
    grant substantive power to create posts in connection with the
    affairs of the Federation.17 The expression “allocation and
    transaction” of the business does not by any stretch of imagination
    imply such power. Thus, the appointment of the Chairman, ARU
    by the Cabinet was without lawful authority, and is so declared.
  3. The prior appointment of the Chairman, ARU as Special
    Assistant to the Prime Minister on Accountability with the status of
    Minister of State, under Rule 4(6) of the ROB also appears to be
    questionable. The Constitution has prescribed a limitation for the
    total number of the Federal Ministers and Ministers of State:
    second proviso to Article 93 mandates that the total strength of the
    Cabinet, including Ministers of State, shall not exceed eleven
    percent of the total membership of Majlis-e-Shoora (Parliament).
    This command of the Constitution cannot be circumvented and
    made redundant by doing a thing indirectly that cannot be done
    directly. The Constitution has envisaged the Federal Government
    consisting of the Prime Minister and the Federal Ministers to
    exercise the executive authority of the Federation,18 and has
    allowed assistance in exercise of that authority by appointment of

17 See Mustafa Impex v. Govt. of Pakistan, PLD 2016 SC 808.
18 The Constitution of the Islamic Republic of Pakistan, 1973, Article 90(1).
Const. P. No.17 of 2020, etc. 15
the Ministers of State19 and the Advisers.20 The Constitution does
not provide for appointment of any Special Assistant to the Prime
Minister. The scope of the Rules of Business made under Article
99(3), as above explained, is restricted only to the “allocation and
transaction” of the business of the Government. The vires of Rule
4(6) of the ROB that empowers the Prime Minister to appoint
Special Assistant, therefore, needs serious examination. This
matter, however, is not directly in issue in the present case;
therefore, it is left to be decided in an appropriate case some other
time.

  1. The ARU was, as aforesaid, neither supported by any law nor
    recognized by the ROB as a functional part of the Federal
    Government. It was at best an internal part of the Prime Minister’s
    Office and possessed no legal status more than that of the status
    of its Chairman, i.e., the Special Assistant to the Prime Minster.
    Such an internal unit or wing or cell under the Cabinet Division
    and in the Prime Minister’s Office had no power to deal with or pry
    into the affairs of a third party and more so of a citizen who at all
    times enjoys an inalienable right to the protection of law and the
    constitutional guarantee of fundamental rights. Without the
    backing of an enabling law, the ARU or the Chairman, ARU had no
    power or jurisdiction to deal or interact with any third party. There
    is no power inherent in the Executive; the Constitution and the law
    are the only source of its powers and duties.21 No office or
    authority of the Executive can take any action detrimental to the
    life, liberty, body, reputation or property of any person except in
    accordance with law as mandated by Article 4 of the Constitution.
    Inspite of no legal standing, the ARU and its Chairman had
    arrogated to themselves the role of avatars of accountability,
    drawing their legal authority and power from the Terms of
    Reference (TORs) approved by the Cabinet. The TORs of the ARU,
    which set out various inquisitorial and investigative functions
    regarding the life, liberty, reputation and property of the citizens of
    Pakistan, have absolutely no legal value. The ARU, it is stated as a
    matter of example, was not even entitled to proceed against a peon
    at the Prime Minister’s Office. However, audacity of the Chairman,

19 Ibid., Article 92(1).
20 Ibid., Article 93(1).
21 See Muslim League v. Federation, PLD 2007 SC 642.
Const. P. No.17 of 2020, etc. 16
ARU had no bounds and he, on a vague complaint, without any
authorization from any constitutional or legal source, started
investigation into the affairs of a judge of the highest constitutional
court of the land. A Special Assistant, a contractual employee,
serving at the pleasure of the Prime Minister had no authority or
power to embark upon this inquisition. It is not reasonable to
accept that the Special Assistant to the Prime Minister or the Law
Minister could have performed all these acts without any kind of
tacit authorization from the Prime Minister. This misplaced
overzealousness besides being illegal and without jurisdiction is
also speaking, and speaks loudly, that there was more to it than
meets the eye.
Investigation of the Complaint by the ARU

  1. The Chairman, ARU on receiving the complaint from the
    complainant acted with surprising agility and unleashed his team
    to collect evidence of the alleged foreign properties. The ARU,
    which was to work under the Cabinet Division as per decision of
    the Cabinet, did not make any formal request to the Law and
    Justice Division through the Secretary, Cabinet Division for
    consultation on the matter in accordance with Rule 14 of the ROB,
    despite noting in minutes of its meeting held on April 15, 2019
    that the matter was sensitive as it related to the Judges of the
    Superior Judiciary. The informal discussion and consultation
    made by the Chairman and Members of the ARU with the Law
    Minister on April 16, 2019, and the oral advice of the Law Minister
    in that discussion carries no value in the eyes of law. The Law
    Minister, who was a distinguished constitutional lawyer, also did
    not realize the importance of his advice, even oral, and gave a “go
    ahead” to the ARU for inquiring into the veracity of the allegations
    made in the complaint against judges of the constitutional courts.
    The Chairman, ARU who was also a Barrister-at-law, and not a
    layman, knew well that an oral advice of the Law Minister was
    nothing in the eyes of law and he should have ascertained his legal
    authority to inquire into the allegations made against Judges of
    Constitutional Courts, before initiating the inquiry into the
    allegations made in the complaint. But both of them paid no heed
    to the constitutional mandate of Article 209 of the Constitution,
    and initiated the process of inquiring into the allegations made in
    Const. P. No.17 of 2020, etc. 17
    the complaint in such a manner which even the Council could not
    have done if the complaint had been made to it. This cannot be
    taken to be an innocent mistake by persons of such a legal caliber
    and standing.
  2. The Chairman ARU, after the discussion with the Law
    Minister, on his own initiated the inquiry against the alleged
    properties of the judges of the constitutional courts and their
    family members. He tasked his team to procure the family records
    of the Petitioner Judge from NADRA and also their travelling
    history and the tax record from FIA and FBR, respectively. This
    fact is evident from the minutes of the meeting held on April 16,
    2019 by the Chairman and Members of ARU with the Law
    Minister; there is no mention of discussion among the Members of
    the ARU on how to proceed further in the matter, or making of the
    decision by consensus or majority view of the Members. The
    Chairman, ARU did not obtain the opinion of or consult with the
    other Members of ARU. However, the other Members of ARU
    supplied information on the Petitioner Judge and his family
    without the authorization of law. It is clear from the minutes of the
    meeting that ARU was being run by the Chairman, ARU, and the
    other Members of ARU, even though representing statutory
    authorities, acted illegally and with alarming servitude.
  3. Astonishingly, the Chairman, ARU on the oral advice of the
    Law Minister, decided not to inquire into the alleged foreign
    properties of another judge22 mentioned in the complaint on the
    ground that the said judge had already resigned. This selective
    treatment unveils the true objective of the proceedings conducted
    by the Chairman, ARU and the Law Minister: to conduct a judicial
    witch-hunt rather than to recover alleged unlawful foreign assets
    and properties. Had the Chairman, ARU been acting for recovery of
    the alleged illegally acquired foreign assets of the Judges as per the
    so-called mandate of the ARU, the fact that a judge had resigned
    could have made no difference for taking legal proceedings for the
    recovery of his alleged illegally acquired foreign properties.

22 Justice Farrukh Irfan Khan of the Lahore High Court.
Const. P. No.17 of 2020, etc. 18
Searching and Locating the Foreign Properties by the Legal Expert,
ARU

  1. This is the most sensitive, disturbing and scary part of the
    case for any law-abiding citizen and for a country governed by the
    rule of law. It is an admitted fact between the parties that
    ownership of an immovable property in UK can be traced through
    UK HM Land Registry’s official website, only by giving its address
    (property number) and not by simply citing the name of the owner.
    This information was not supplied by the complainant and was not
    available on the record of FBR or any other office or authority in
    Pakistan. The critical question that requires explanation is, how
    did the complainant or the ARU find out the addresses of the UK
    properties, so that they could access UK HM Land Registry?
    Answer to this question will answer whether we have a
    Government of law or Government of men.
  2. The Petitioner Judge asserted in his constitutional petition
    that the information forming the basis of the Reference was
    gathered through covert surveillance in stark violation of his and
    his family’s fundamental rights of privacy and dignity. The
    response of the Federation in its concise statement was a simple
    denial to this assertion of the Petitioner Judge; no details were
    mentioned as to how the UK properties in the name of the spouse
    and children of the Petitioner Judge were located. The report dated
    May 8, 2019 of the Legal Expert, ARU annexed with the concise
    statement only stated that after an asset search the properties had
    been found registered in names of the persons mentioned in that
    report. This report was also silent as to how that property search
    was conducted. Who carried out the search? How was the search
    carried out? Who paid for it and when, especially when ARU has
    not sanctioned budget? What was discovered in the search? No
    evidence to this effect has been placed before us. These are
    questions that go unanswered and are deeply worrying in a State
    that is governed by the Rule of Law.
  3. It was much after the counsel of the Petitioner Judge had
    completed his arguments that on June 1, 2020 the Chairman, ARU
    and the Legal Expert, ARU filed their concise statement, and in
    that statement they asserted that the details of those residing in
    Const. P. No.17 of 2020, etc. 19
    any immovable property in the UK can be accessed through open
    source websites such as 192.com and ukphonebook.com; that once
    the address is located, the owner of that immovable property can
    be found through open source such as the UK HM Land Registry.
    They further stated that there had been no covert surveillance of
    the Petitioner Judge or his family. The Petitioner Judge filed a CMA
    in response to the said concise statement of the Chairman and
    Legal Expert, ARU. He stated therein that 192.com,
    ukphonebook.com, and UK HM Land registry websites are not free
    or open source websites. He elaborated that to access the
    information from the website 192.com, an account with username
    and password need to be created, payment is to be made by
    debit/credit card, the website acknowledges the payment of
    charges by email, and sends the requested information by email,
    and likewise is the procedure of accessing information from the UK
    HM Land Registry website. The Federation in defence did not
    produce any record of the searches made on those websites: What
    and how many addresses were found and under whose names?
    Who created the account? Who made the payment of charges?
    What were the payment or credit card details? Who received the
    acknowledgement of payment and the requested information and
    at whose email address? More importantly, there is no evidence of
    what information was received that was allegedly carried to UK HM
    Land Registry. The Federation has papered over the gaps by
    referring to 192.com, which is not sufficient, unless details are
    furnished regarding the information retrieved from the said site. It
    is underlined that a paid source, which requires registration and
    payment before allowing access to information, is not an open
    source as claimed by the Federation. It shows that no such search
    was conducted for tracing the properties through those websites;
    rather the details of the properties were gathered through covert
    surveillance of the Petitioner Judge and his family. Covert
    surveillance and interception are offensively intrusive investigative
    tools only available to intelligence agencies in the country.23
  4. Article 129(g) of the Qanun-e-Shahadat Order, 1984 allows
    the Court to presume that evidence which could be and is not
    produced would, if produced, be unfavourable to the person who

23 See Investigation For Fair Trial Act, 2013
Const. P. No.17 of 2020, etc. 20
withholds it. When a party withholds best evidence available with
him without any sufficient cause, an adverse presumption is
drawn against that party, irrespective of who bears the onus of
proof,24 that the evidence withheld must have been against his
version.25 Thus, the omission of the Federation and of the
Chairman and Legal Expert, ARU to produce the said record as to
procuring the address of the UK properties of the spouse and
children of the Petitioner Judge through the 192.com website gives
rise to a presumption that the Legal Expert, ARU never searched
the addresses of the properties through the 192.com website. Even
otherwise, the Chairman and Legal Expert, ARU in their concise
statement made a general statement that an immovable property
can be located through open source websites, but they did not
make any specific and categorical statement therein that the UK
properties of the family of the Petitioner Judge were located by that
method. The ARU was not equipped to carry out surveillance or
interception without the assistance of the intelligence agencies, for
which it had been authorized in the TORs by the Cabinet without
any lawful authority as discussed above. It is underlined that
intelligence agencies were also aggrieved of the Faizabad Dharna
judgment as it carried adverse observations regarding their role
and activity. That is why the review petitions were filed by the
Ministry of Defense on behalf of the intelligence agencies. Further,
it is evident from the report dated June 26, 2019 of the Legal
Expert, ARU that he hired a Tracing Agent firm to trace the
residents of the properties over the years, and not to trace the
addresses of the properties.

  1. While regular inquiry and investigation is limited to reaching
    out to lawful and visible evidence existing at the time, covert
    surveillance and interception are modern intrusive investigative
    tools for discovering and creating evidence against a person by
    encroaching upon his privacy and personal liberty. While
    investigation is the collection of the available record and mostly
    after notice to the person under investigation, surveillance is far
    more secretive and clandestine operation which is designed to
    intrude into the private recesses of one’s life, the confidential zone

24 See Murugesam Pillai v. Manickavasaka Desika, (1917) I.L.R. 40.
25 Rameshwar Singh v. Rajit Lal, AIR 1929 PC 95; Hiralal v. Badkulal, AIR 1953 SC 225;
and, Muhammad Zubair v. State, 2007 SCMR 437.
Const. P. No.17 of 2020, etc. 21
that stands protected under the constitutional guarantees of the
right to privacy and personal liberty. It is for this reason that
surveillance is permitted in the limited area of anti-state or
terrorist activities and that too under judicial and executive
oversight. Outside this limited area, surveillance is constitutionally
prohibited. Intelligence agencies do not enjoy a free hand in
conducting surveillance but are subject to strict rules of
compliance and oversight by the court. In the absence of any other
evidence furnished by ARU or the Law Minister, it is but obvious
that in this case the information about the addresses of properties
were obtained through no other means but through covert
surveillance and interception of the intelligence agencies which
gathered the information from the private zone of privacy enjoyed
by the Petitioner Judge and his family, without any authorization
of law and by brutally trampling over the constitutional guarantees
of privacy, personal freedom and dignity. To trivialize the right to
privacy by saying that the judge has nothing to hide is “no different
than saying you don’t care about free speech because you have
nothing to say.”26 The mode and manner of procurement of
information regarding the three UK properties cannot be lightly
dismissed; in it lays the destiny of our people and the future
course of our country.

  1. The complainant is a party to these proceedings. He also
    appeared before us, but did not explain his source of information
    or cleared the allegations leveled against him. The complainant
    appears to be a proxy, who could not have discovered the
    addresses of the three foreign properties. This inference is further
    supported from the following facts. The complaint allegedly
    annexed the copy of title record of one foreign property of the
    spouse of the Petitioner Judge, with his complaint. That copy of
    the title record was tendered by the Federation in Court, with the
    concise statement of the Chairman and Legal Expert, ARU on June
    1, 2020 belatedly as mentioned above. The notable aspect of this
    copy of the title record is that it bears the Spanish name of the
    spouse of the Petitioner Judge, which as per stance of the
    Federation came to surface when the Member of ARU from FIA
    obtained her NADRA record, passport record and travelling history

26 Edward Snowden, Permanent Record.
Const. P. No.17 of 2020, etc. 22
record. It is alarming to imagine how the complainant had come to
know of the Spanish name of the spouse of the Petitioner Judge
and how on earth he got the access to the address of that property.
When the complaint does not mention either. The Chairman, ARU
stated in his report that he met the complainant but did not
mention in that report how the complainant had known the
Spanish name of the spouse of the Petitioner Judge and got the
address of that property. To cover up these gaping omissions, the
Federation took the stance during arguments that the complainant
was a journalist and no journalist tells, or can be compelled to tell,
the source of his information. The stance is misconceived; it has
been taken without appreciating the fact that the complainant had
not got published an investigative story in any newspaper, he had
rather made a complaint for action against the judges of
constitutional courts for their alleged misconduct. His status was
that of a complainant, and not of a journalist, in making the
complaint. It is no rocket science to put the facts together to
discern that the complainant was fed the information to generate
the complaint. Whoever fed him the information are the real actors
of this saga. The credentials of the complainant give further
credence to this story; he was an unknown journalist with rather
dubious reputation. Report of the Chairman ARU dated May 10,
2019 compiled after thorough investigation of the allegations made
in the complaint and submitted to the Law Minister goes silent as
to why the complainant wanted to file the complaint, what was his
source of information, what newspapers he worked for, and did his
complaint qualify to hide behind the code of ethics of journalists.

  1. This aspect of the case as to the unlawful procurement of the
    information through unlawful surveillance of the Petitioner Judge
    and his family is deeply worrying and shakes the foundations of a
    democratic society based on the rule of law. The issue of unlawful
    surveillance and invasion of privacy of the Petitioner Judge and his
    family is far more critical and grave than the information procured
    by the ARU. It is a naked threat to personal liberty, privacy and
    dignity guaranteed to the citizens under the Constitution. In order
    to appreciate the gravity of the constitutional violation committed
    by the ARU or its Chairman, it is important to understand the
    concept of privacy and personal freedom in a constitutional
    Const. P. No.17 of 2020, etc. 23
    democracy that protects our private lives, our friendships, our
    relationships, our thoughts and our very sense of being, which no
    State has the power to touch or encroach.
    Concept of Privacy
  2. The Greek philosopher Aristotle spoke of a division between
    the public sphere of political affairs (which he termed the polis) and
    the personal sphere of human life (termed oikos).27 This dichotomy
    may provide an early recognition of “a confidential zone on behalf
    of the citizen.”28 Activities in the private realm are more
    appropriately reserved for “private reflection, familial relations and
    self-determination.”29 John Stuart Mill in his essay, ‘On Liberty’
    (1859) gave expression to the private zone in one’s life; “The only
    part of the conduct of any one, for which he is amenable to society,
    is that which concerns others. In the part which merely concerns
    himself, his independence is, of right, absolute. Over himself, over
    his own body and mind, the individual is sovereign.”30 Sir Edward
    Coke, perhaps the most influential English jurist of all time,
    famously declared in Semayne case31 “that the house of everyone
    is to him as his Castle and Fortress as well for his defence against
    injury and violence, as for his repose.” Justice Stephen Breyer in
    his book writes that “by privacy, I mean a person’s power to control
    what others can come to know about him or her.”32 In the most
    famous essay on privacy ever written, published in the Harvard
    Law Review in 1890, Louis Brandeis and Samuel D Warren
    referred to the principle of the right to an “inviolate personality,”
    and said that it was a part of the more general “right to be let
    alone.”33 Later Justice Louis Brandeis expressed the right to
    privacy in his dissent in Olmstead v. United States34 in the terms
    that a core of freedom and liberty from which the human being had
    to be free from intrusion. The right to be let alone is a reflection of
    the inviolable nature of the human personality. “Privacy

27 Justice K.S. Puttaswamy (Retd) v. Union of India, AIR 2017 SC 4161.
28 Michael C. James, A Comparative Analysis of the Right to Privacy in the United States, Canada
and Europe, Connecticut Journal of International Law, p.261, Vol.29, Issue 2, (Spring 2014)
29 Ibid, at page 262
30 John Stuart Mill, On Liberty, Batoche Books, p.13, (1859).
31 [5 Coke 91: 1 Sm LC (13th Edn.) 104 at p. 105]
32 Justice Stephen Breyer (Associate Judge of the United States Supreme Court) in Active Liberty
p.66
33 Warren and Brandeis, The Right to Privacy, Harvard Law Review, p.193, (1890), Vol. 4, No. 5.
34 277 U.S.438, 478 (1928)
Const. P. No.17 of 2020, etc. 24
is…essential to democratic government because it fosters and
encourages the moral autonomy of the citizen, a central
requirement of a democracy.”35 Privacy therefore affirms the
agency and autonomy of the individual and the right of every
person to have the freedom and liberty to live a life of dignity.
Privacy requires that all information about a person is
fundamentally his own, only for him to communicate or retain for
himself. The concept of private life includes the right to personal
autonomy, personal development and the right to establish and
develop relationships with other human beings and with the
outside world.36 “The freedom of a country can only be measured
by its respect for the rights of its citizens, and … these rights are in
fact limitations of state power that define exactly where and when
a government may not infringe into that domain of personal or
individual freedoms that during the American Revolution was
called “liberty” and during the Internet Revolution is called
“privacy.”37

  1. Recognizing and protecting the zone of privacy is the freedom
    and liberty our Constitution holds dear. Privacy attaches to the
    person and not to the place where it is associated. Home under
    Article 14 of the Constitution is not only the physical house but
    the entire treasure of personal life of a human being.38 The
    intrusion by the State into the sanctum of personal space, other
    than for a larger public purpose, is violative of the constitutional
    guarantees. Right to privacy is deeply intertwined with the right to
    life, right to personal liberty and right to dignity. “Arguing that you
    don’t care about the right to privacy because you have nothing to
    hide is no different than saying you don’t care about free speech
    because you have nothing to say.”39 This is a cherished
    constitutional value, and it is important that human beings be
    allowed domains of freedom that are free of public scrutiny and
    protected against “unwanted gaze,”40 unless they act in an
    unlawful manner.

35 Lawrence Lessig, Code and Other Laws of Cyberspace, p.153–55 (1999).
36 Artavia Murillo ET AL. (“In Vitro Fertilization”) v. Costa Rica (2012), Inter-Am. Ct. H.R.
(Ser.C) No.257
37 Edward Snowden, Permanent Record.
38 see Benazir Bhutto v. President of Pakistan, PLD 1998 SC 388.
39 Edward Snowden, Permanent Record.
40 Jeffrey Rosen, The Unwanted Gaze: The Destruction of Privacy in America (2000).
Const. P. No.17 of 2020, etc. 25
Social Impact of Violation of Privacy.

  1. Illegal and illegitimate surveillance, by both State and private
    actors, has the impact of intrusion into the private lives of citizens,
    not only violating their constitutional rights but also intruding on
    the very personhood, privacy and personal liberty of those
    surveilled. Surveillance has disparate impact, violating principles
    of non-discrimination and equality as enshrined in our
    Constitution. Writing for the Harvard Law Review in 2013, Neil
    Richards stated that surveillance has a chilling effect on the
    exercise of our civil liberties.41 Furthermore, surveillance is often
    exercised as a power by the watcher over the watched, as a form of
    control. “This disparity creates the risk of a variety of harms, such
    as discrimination, coercion, and the threat of selective
    enforcement, where critics of the government can be prosecuted or
    blackmailed for wrongdoing unrelated to the purpose of the
    surveillance.”42 Surveillance and illegitimate intrusions into privacy
    impact the essential work that journalists, academics and activists
    do. Undue surveillance can lead to a chilling effect on those critical
    of State institutions and societal norms. Undue interference with
    individual’s privacy can both directly and indirectly limit the free
    development and exchange of ideas.43
  2. In fledgling democracies, where institutional development is
    still finding its feet and the concept of rule of law has not firmly
    taken ground, special care is required to ensure that law
    enforcement and intelligence agencies fully comply with the law
    dealing with surveillance and interception. Any laxity or concession
    given to these agencies to step outside the law and collect evidence,
    can be a serious threat to constitutional guarantees of the people,
    in particular, and to democracy, in general. International
    experience44 tells us that unconstitutional and illegally procured
    private information amassed by the agencies can be used to
    manipulate and blackmail people for promoting political agendas.

41 Neil M. Richards, The Dangers of Surveillance, Harvard Law Review, p.1935, vol.126, (2013).
42 Ibid
43 see Digital Rights Foundation (DRF), Impact and Legality of Surveillance, A Policy Brief
(2020). https://digitalrightsfoundation.pk/wp-content/uploads/2020/10/Impact-and-Legality-ofSurveillance-Final-Document-14.10.2020-1.pdf
44 See Bolo Bhi, Surveillance, Interception and Evidence Gathering: Local Law and International
Precedents, A Research Paper (2020). https://bolobhi.org/surveillance-interception-and-evidencegathering-local-law-and-international-precedents/
Const. P. No.17 of 2020, etc. 26
This cripples human security and dismantles democracy, lowering
it slowly into an abyss of totalitarianism. Any unconstitutional
intrusion and unlawful collection of reels of unauthorized private
data can make any law enforcement or intelligence agency become
a Frankenstein – indestructible and uncontrollable. Infringing the
foundational principle of separation of powers. In a parliamentary
democracy with inbuilt checks and balances the question of who
will guard the guards does not arise and should not arise.

  1. Intercepted material through “surveillance” includes data,
    information or material in any documented form, whether written
    or recorded, through audio visual device, CCTV, still photography,
    observation or any other mode or technique. And, “interception” on
    communication medium includes: emails, SMS, IPDR (internet
    protocol detail record) or CDR (Call detail record) and any form of
    computer based or call phone based communication using wired or
    wireless or IP (internet protocol) based media or gadgetry.45 The
    fact that the ARU did not possess the resources or the technical
    capacity to carry out surveillance of the Petitioner Judge and his
    family and the interception of their communications, gives
    credence to the stance of the Petitioner Judge that the surveillance
    was carried out in connivance and in collaboration with the
    intelligence agencies. The possibility of such happening, therefore,
    cannot be ruled out in the absence of any other evidence to the
    contrary, on the record.
    Investigation for Fair Trial Act, 2013
  2. The only law referred to us during arguments that allows
    surveillance of persons by the Law Enforcement and Intelligence
    Agencies is the Investigation for Fair Trial Act, 2013 (“IFTA”). The
    Legislature in the preamble provides that “being mindful that the
    existing laws neither comprehensively provide for nor specifically
    regulate, advance and modern, investigative techniques such as
    covert surveillance and human intelligence, property interference,
    wiretapping and communication interception that are used
    extensively in other jurisdictions to successfully prevent the
    offences and as an indispensable aid to the law enforcement and

45 The Investigation for Fair Trial Act, 2013, section 3(g).
Const. P. No.17 of 2020, etc. 27
administration of justice.”46 It further provides that “in order to
neutralize and prevent the threat or any attempt to carry out
scheduled offences it is necessary that the law enforcement and
other agencies be given certain authorizations to obtain evidence in
time and only in accordance with law47.” Regarding the evidence so
collected the preamble provides that “it is also in order to declare
the admissibility and use of the material obtained during lawful
investigation under the present law, in the judicial proceedings
and all other legal proceedings or process to ensure fair trial.48”
The IFTA requires a notified officer to make an application under
the Act, if there is reason to believe that a person may be
associated with or is likely to act in a manner that constitutes a
scheduled offence. However, the officer is required to obtain a
warrant from court for surveillance or interception. Prior to
obtaining a warrant, the officer is required to prepare a report with
supporting material, present it to the Minister (Federal Minister for
Interior) for permission and then move the application before a
judge for issuance of the warrant. A warrant under the Act is to be
issued by a judge of the High Court in chamber. Section 8 of IFTA
lists the requirements the officer must meet when seeking
permission for surveillance or interception, whereas Section 10
pertains to what is to be considered by the judge when issuing a
warrant. The duration of the warrant under Section 14 of the IFTA
is 60 days. It may be re-issued for another 60 days after a fresh
application is made and reasons presented by the officer, for why
the earlier time period was insufficient. If the request by the
applicant is deemed arbitrary by the judge, under Section 15 of the
law, departmental action can be recommended against the officer.
Under Section 22 of the Act, the authorized officer is required to
certify that the evidence collected is strictly in accordance with the
warrant and has not been tampered with or altered, before turning
it over to the investigating officer.

  1. The IFTA, thus, provides that intelligence agencies can carry
    out surveillance and interception of a suspect to gather
    information regarding anti-state or terrorist activities and that too
    after obtaining a warrant from a Judge of the High Court

46 Ibid, preamble.
47 Ibid.
48 ibid
Const. P. No.17 of 2020, etc. 28
concerned. Intelligence agencies therefore do not have a carte
blanche to probe into the lives of ordinary men and women of this
country. These agencies are regulated by law and are subject to
law. In 2013, a coalition of civil society organizations developed
“International Principles on the Application of Human Rights to
Communications Surveillance” highlighting a human rights
approach to surveillance. These principles, though not adopted by
any State party, the principles highlight the ways in which
international human rights law applies to surveillance practices.
The principles are 1) legality: “any imitation to the right to privacy
must be prescribed by law”; 2) legitimate aim: “laws should only
permit communications surveillance by specified State authorities
to achieve a legitimate aim that corresponds to a predominantly
important legal interest that is necessary in a democratic society.
Any measure must not be applied in a manner which discriminates
on the basis of race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other
status;” 3) necessity: “strictly and demonstrably necessary to
achieve a legitimate aim”; 4) adequacy: “must be appropriate to
fulfill the specific legitimate aim identified;” 5) proportionality:
“should be regarded as a highly intrusive act that interferes with
the rights to privacy and freedom of opinion and expression,
threatening the foundations of a democratic society”; 6) competent
judicial authority: “determinations related to communications
surveillance must be made by a competent judicial authority that
is impartial and independent”; 7) due process: “that lawful
procedures that govern any interference with human rights are
properly enumerated in law, consistently practiced, and available
to the general public”; 8) user notification: “individuals should be
notified of a decision authorizing communications surveillance
with enough time and information to enable them to appeal the
decision”; 9) transparency: “about the use and scope of
communications surveillance techniques and powers”; 10) public
oversight: “establish independent oversight mechanisms to ensure
transparency and accountability of communications surveillance”;
11) integrity of communications and systems: “States should not
compel service providers or hardware or software vendors to build
surveillance or monitoring capability into their systems, or to
Const. P. No.17 of 2020, etc. 29
collect or retain particular information purely for State surveillance
purposes”; 12) safeguards for international cooperation: “States
may not use mutual legal assistance processes and foreign
requests for protected information to circumvent domestic legal
restrictions on communications surveillance”; 13) safeguards
against illegitimate access: “enact legislation criminalizing illegal
communications surveillance by public or private actors.”49

  1. Any covert surveillance or interception of the citizens of
    Pakistan other than under IFTA is starkly offensive to their
    fundamental rights of privacy and personal liberty. There is no law
    in the country that authorizes any law enforcement or intelligence
    agency to pry into the privacy of home to dig out private family
    information through targeted surveillance, and to use it against
    them to achieve various ends. Any such surveillance into the
    inviolate private core of human life seriously threatens normal
    human existence as it clogs their freedoms and distorts the
    meaning of our constitutional democracy founded on the rule of
    law promised by our founding fathers. Such intrusion and
    encroachment into the private life of a citizen by the State actors
    totally demolishes the scheme of fundamental rights under the
    Constitution. Fundamental rights of privacy, personal liberty and
    dignity provide a bar against intrusion into the private life of a
    citizen through surveillance; which aims to continuously fish for
    something adverse against a citizen and then to use it against him
    when required. These are tricks of a totalitarian State and not the
    ways of an elected Government of a constitutional democracy
    which must rest its governance on the rule of law and supremacy
    of the Constitution.
    Information Procured from NADRA, FBR & FIA by the ARU
  2. The Member of the ARU from FIA, Assistant Commissioner
    (Inland Revenue), Commissioner (Inland Revenue), and DG
    (International Taxes)/Member of ARU from FBR, all four,
    submitted their reports on May 10, 2019. Rights to personal liberty

49 Electronic Frontier Foundation, Necessary & Proportionate: International Principles on the
Application of Human Rights Law to Communications Surveillance, (2014). Also see: Bolo Bhi,
Surveillance, Interception and Evidence Gathering: Local Law and International Precedents, A
Research Paper (2020)
Const. P. No.17 of 2020, etc. 30
and privacy under Articles 9 and 14 of the Constitution impose a
constitutional obligation on State authorities to protect the privacy
and personal freedom of the citizens unless the law expressly
authorizes them to do otherwise in exceptional circumstances. In
the absence of any law to the contrary, the rights to privacy and
personal freedom become absolute and stand to protect the privacy
and personal freedom of the citizen. No Government institution is
to disclose the personal information of any citizen unless the law
authorizes the institution to do so. In the absence of any specific
law, the umbrella of constitutional guarantees will come to cover
and protect the citizen. Employees of NADRA, who were legally
enjoined under section 28 of the NADRA Ordinance, 2000 not to
communicate to any person any information acquired by them in
the course of their employment, committed violation of that
command of the law by making compliance with the command of
the Chairman, ARU in communicating to the Chairman and other
Members of the ARU the NADRA record relating to the Petitioner
Judge and his family. Likewise, Member of the ARU from FBR
committed violation of section 216 of the ITO, 2000 by disclosing
the tax records of the Petitioner Judge and his spouse to the
Chairman and other Members of the ARU. While Member of the
ARU from the FIA breached Rule 18 of the Government Servants
(Conduct) Rules, 1964 by making unauthorized communication of
the official documents and information as to the passport/visa
record and travelling history of the Petitioner Judge and his family.
It is astonishing that information which even the Prime Minister,
any Federal Minister or the Cabinet could not solicit under the law
was being made available to the Chairman, ARU by the officials of
NADRA, FBR and FIA. At the cost of repetition, the Chairman, ARU
examined all the reports and record submitted to him on May 10,
2019, made his final Report on May 10, 2019 and submitted it to
the Law Minister on the very same day, i.e., May 10, 2019. All
proceedings stand concluded in one day. This hurried exercise
being against the normal course of business also points towards
lack of bonafide in the whole process and proceedings.

  1. The Chairman and Legal Expert, ARU procured the
    information regarding the UK Properties by offending the
    fundamental rights of personal liberty, privacy and dignity of the
    Const. P. No.17 of 2020, etc. 31
    Petitioner Judge and his family by procuring personal information
    regarding the UK Properties without the sanction of any law
    through covert surveillance and interception, and also by violating
    the confidentiality provisions of the NADRA Ordinance and the
    ITO. These actions of the Chairman and Legal Expert of ARU also
    attract criminal liability under section 35 of IFTA. The ARU thus
    did not collect the evidence in support of the allegations made in
    the complaint against the Petitioner Judge, in accordance with the
    law and Constitution. Additionally, when the very establishment of
    the ARU and appointment of its Chairman were without any lawful
    authority, all the acts done by the Chairman, Legal Expert and
    Members of the ARU as to the investigation and collection of
    evidence in support of the allegations made in the complaint were
    also without lawful authority and are so declared. For these illegal
    actions, the authorities concerned must initiate criminal and
    disciplinary proceedings against the Chairman, Legal Expert and
    Members of the ARU, as well as, the deafulting officials of FBR and
    NADRA under the IFTA, ITO and NADRA Ordinance, 2000.
    Reliance on the Illegally Collected Evidence by the Law Minister and
    Prime Minister
  2. The Law Minister, a distinguished lawyer, did not raise any
    objection to the investigation and surveillance conducted by the
    ARU for accountability of a constitutional court judge, on receiving
    the report of the Chairman, ARU. He rather relied upon the
    evidence illegally collected in that inquiry for making the
    “Summary for the Prime Minister”, and proposing to the Prime
    Minister to advise the President to form an opinion that the
    Petitioner Judge may be guilty of misconduct and direct the
    Council to inquire into the matter under Article 209 of the
    Constitution. Likewise, the Prime Minister also without asking the
    Law Minister or the Chairman ARU as to under what authority of
    law the ARU conducted inquiry into and collected evidence on the
    allegations made in a complaint against a constitutional court
    judge, advised the President on the basis of that illegally collected
    evidence to form the opinion, direct the Council and sign the draft
    Reference. It is important to assess whether the evidence/material
    collected by the ARU, passed on to the Law Minster and further
    put up before the Prime Minister was legally admissible.
    Const. P. No.17 of 2020, etc. 32
    Exclusionary Rule- Admissibility of Illegally Collected Evidence
  3. Under the classic common law, the test of admissibility of
    evidence was whether it is relevant to the matter in issue. If it is, it
    is admissible, and the Court is not concerned with how it was
    obtained.50 The law of evidence, i.e., the Evidence Act, 1872 (now
    Qanun-e-Shahdat Order, 1984) did not deal with the possibility of
    procurement of evidence through illegal and unconstitutional
    surveillance offending the fundamental rights of privacy, personal
    liberty and dignity. It also did not envisage that the right to a fair
    trial would be guaranteed as a fundamental right under the
    Constitution. There has, however, been a great shift in application
    of the said rule in major common law jurisdictions, with
    recognition of the importance of civil rights and liberties of the
    citizens in a State governed by the Rule of Law.
  4. In United Kingdom, the mother of common law, Lord
    Hoffman has observed in A v. Secretary of State51 that “the courts
    will not shut their eyes to the way the accused was brought before
    the court or the evidence of the guilt was obtained. Those methods
    may be such that it would compromise the integrity of the judicial
    process, dishonor the administration of justice, if the proceedings
    were to be entertained or the evidence admitted. In such a case the
    proceedings may be stayed or the evidence rejected on the ground
    that there would otherwise be an abuse of process of the court”.
  5. In Australia, Barwick CJ speaking for the Court in R v.
    Ireland,52 held that when evidence is procured by unlawful or
    unfair acts, the judge has a discretion to reject the evidence. In the
    exercise of that discretion, the learned Chief Justice said, “the
    competing public requirements must be considered and weighed
    against each other. On the one hand there is the public need to
    bring to conviction those who commit criminal offences. On the
    other hand there is the public interest in the protection of the
    individual from unlawful and unfair treatment. Convictions
    obtained by the aid of unlawful or unfair acts may be obtained at
    too high a price. Hence the judicial discretion”. This statement of

50 See Kuruma v. Queen, 1955 AC 197; Pooran Mal v. Director of Inspection, AIR 1974 SC 348;
and, Bisvil Spinners v Pakistan, PLD 1992 SC 96.
51 [2006] 2 AC 221.
52 [1970] HCA 21.
Const. P. No.17 of 2020, etc. 33
law was reaffirmed by the High Court of Australia in Bunning v
Cross.53

  1. In United States, the Fourth Amendment to the US
    Constitution guarantees the privacy rights by declaring that “[t]he
    right of people to be secure in their persons, houses, papers, and
    effects, against unreasonable searches and seizures, shall not be
    violated, and no warrants shall issue, but upon probable cause,
    supported by oath or affirmation, and particularly describing the
    place to be searched, and the persons or things to be seized”. A
    right to be free from unreasonable searches and seizures is though
    declared by the Fourth Amendment, but how one is to translate
    the guarantee into concrete terms is not specified. Several possible
    methods of enforcement were considered by the US Courts over
    time; however, the US Supreme Court has settled the one as an
    effective means to make real the right, which is called the
    Exclusionary Rule. Under this Rule, the evidence seized in
    violation of the Fourth Amendment rights is excluded by the US
    Courts. Exclusion of evidence as a remedy for Fourth Amendment
    right violation was founded in Boyd v. United States,54 and was
    developed in later cases. In Mapp v Ohio,55 the US Supreme Court
    held that to admit evidence obtained in violation of the right would
    be, in effect, to “grant the right but in reality to withhold its
    privilege and enjoyment”, and explained that the exclusionary rule
    is designed “to deter – to compel respect for the constitutional
    guaranty in the only effectively available way – by removing the
    incentive to disregard it”.
  2. In Canada, the principle governing the exclusion of evidence
    obtained in violation of the charter rights and freedoms has been
    codified. Section 24(2) of the Canadian Charter of Rights and
    Freedoms declares that where a court concludes that evidence was
    obtained in a manner that infringed or denied any rights or
    freedoms guaranteed by this Charter, the evidence shall be
    excluded if it is established that, having regard to all
    circumstances, the admission of it in the proceedings would bring
    the administration of justice into disrepute.

53 [1978] HCA 22.
54 116 U.S. 616 (1886).
55 367 US 643 (1961).
Const. P. No.17 of 2020, etc. 34

  1. The Irish Supreme Court has in DPP v. JC56 laid down the
    following principles with regard to the admission or exclusion of
    the evidence obtained in violation of the constitutional rights, in
    order to balance the legitimate competing public interests: (i) The
    onus is on the prosecution to establish the admissibility of all
    evidence; (ii) If a claim is raised that evidence was obtained in
    breach of constitutional rights, the onus is on the prosecution to
    establish either (a) that there was no unconstitutionality, or (b)
    that despite any interference with constitutional rights the
    evidence should still be admitted; (iii) Where evidence is obtained
    in deliberate and conscious violation of constitutional rights, it
    should be excluded except in exceptional circumstances; (iv) Where
    evidence was taken in breach of constitutional rights, there is a
    presumption in favour of exclusion, which can be rebutted by
    evidence that the breach of rights was either (a) inadvertent or (b)
    derived from subsequent legal developments; and (v) Whether or
    not a breach of constitutional rights was deliberate and conscious
    requires analysis of the conduct or state of mind of the individual
    who actually gathered the evidence, as well as, any senior official
    or officials within the investigating or enforcement authority
    concerned who was involved either in that decision or in decisions
    of that type generally or in putting in place policies concerning
    evidence-gathering of the type concerned.
  2. The above-stated principle as to inadmissibility of the
    illegally collected evidence has developed mostly in the cases where
    there was a law that regulated a constitutional right, but that law
    was not followed or was violated in the process of collecting
    evidence. The courts have held such evidence to be generally
    inadmissible, with few exceptions, mainly with the reason that the
    admission of such evidence would compromise the integrity of the
    judicial process and bring the administration of justice into
    disrepute. I concur in the principle, and see no hindrance in
    adopting it in our jurisdiction. The admission and reliance on the
    material (evidence) illegally collected by the ARU without any
    enabling law empowering it to do so, in flagrant violation of the
    fundamental rights of privacy, liberty, dignity and freedom of
    movement of the Petitioner Judge and his family, would

56 [2015] IESC 31.
Const. P. No.17 of 2020, etc. 35
compromise the integrity of the judicial process and bring the
justice system into disrepute. Therefore, such material (evidence)
was inadmissible even in view of the above-stated principle
established in other common law jurisdictions and did not fall
within the exceptions thereto, as the illegal acts done for collecting
the material (evidence) were not inadvertent, rather were deliberate
and conscious.
Surveillance, where there is no Law

  1. The present case, however, poses different questions: What
    would be the effect of violation of a constitutionally guaranteed
    fundamental right, which is absolute as it is not regulated by any
    law? Would the prohibition on admissibility of evidence collected
    by infringing such right be absolute or be subject to exceptions?
    While the fundamental right to personal liberty and privacy
    guaranteed by Articles 9 and 14 of the Constitution are subject to
    law, there is no law in our country that authorizes any law
    enforcement or intelligence agency to pry into the privacy of any
    person through surveillance and interception, except the IFTA. The
    scope of the IFTA, as discussed above, is also restricted to the
    surveillance and interception of a person who is suspected to be
    involved in any terrorist or anti-state activity. Besides this limited
    scope under the IFTA, no other law regulates the fundamental
    right of privacy of citizens and allows probe into their lives through
    surveillance and interception. Thus, in the remaining sphere the
    right to privacy is absolute, until law is enacted to regulate it. The
    violation of this sphere of the absolute privacy right makes the
    inadmissibility of evidence collected in violation thereof also
    absolute. Absolute right entails absolute prohibition on its
    violation. The ARU collected evidence by violating the sphere of
    absolute privacy right of the Petitioner Judge and his family
    through surveillance, and without backing of any law for its
    authority to do so. Therefore, such evidence/material was liable to
    be excluded from consideration without any exception, and the
    Law Minister and Prime Minister could not have relied and acted
    upon it, for making the “Summary” and advising the President
    respectively.
    Const. P. No.17 of 2020, etc. 36
  2. The Law Minister opined in the Summary put up before the
    Prime Minister that the Petitioner Judge appeared to have
    committed “grave misconduct” by not declaring three London
    properties owned by his spouse and children and by not explaining
    the source of their purchase in his tax record, without
    appreciating, rather ignoring altogether, the fact that no office or
    authority in Pakistan, under the relevant law, had ever asked the
    spouse and children of the Petitioner Judge to explain their
    sources to purchase the said properties and their failure to declare
    the same in their tax record, if there was any obligation for such
    declaration under the law.
  3. The Prime Minister being the Chief Executive of the
    Federation, failed to verify and examine the information placed in
    the Summary before him. Advising the President to proceed against
    a judge of the highest court of the land required the Prime Minister
    to exercise due diligence and careful consideration of the contents
    of the Summary placed before him. It was not just any business
    he was attending to, he was approving initiation of inquiry against
    a Supreme Court judge, but he took no pains to see that the ARU,
    besides being a non-entity had no authority under the law to
    investigate and collect evidence on a complaint that could not have
    been entertained by the ARU. He also failed to verify how the
    addresses of the three foreign properties were discovered and who
    authorized the ARU to carry out transnational investigation and
    surveillance and whether any office or authority had asked the
    spouse and children of the Petitioner Judge to explain the sources
    of purchase of those properties. Without attending to the above
    material objections against the information placed before him and
    without taking due care, he advised the President on the basis of
    the evidence illegally collected by the Chairman, ARU on the oral
    advice of the Law Minister, to direct the Council to hold an inquiry
    against the Petitioner Judge.
    Opinion of the President under Article 209 (5) of the Constitution
  4. The President also did not question under what authority of
    law the ARU conducted inquiry into the allegations made in a
    complaint against a constitutional court judge and whether any
    office or authority had asked the spouse and children of the
    Const. P. No.17 of 2020, etc. 37
    Petitioner Judge to explain the sources of purchase of those
    properties, and approved the Prime Minister’s advice and signed
    the draft Reference annexed with the Summary without applying
    his independent mind, exercising his discretion and forming his
    own opinion. The constitutional question that arises for
    determination is: whether under Article 209(5) of the Constitution,
    the President is to form his personal “opinion” or to act on the
    “advice” of the Cabinet or the Prime Minister as envisaged under
    Article 48(1) of the Constitution. In order to answer this question,
    the unique nature of the role of the President under Article 209 (5)
    needs to be seen and purposively interpreted in the confluence of
    foundational constitutional principles: parliamentary democracy;
    separation of powers; independence of judiciary; the rule of law;
    and neutrality of the office of the President being Head of State and
    representing unity of the Republic.
  5. In a parliamentary democracy, the President is largely a nonexecutive symbolic leader of the State who does not exercise
    executive or policymaking power. However, in the same
    parliamentary democracy a non-executive President may,
    nevertheless, possess and exercise powers of extraordinary political
    intervention as a constitutional arbiter or guarantor. This is
    premised on the principle that underscores that a non-executive
    President separates the representative embodiment of the
    permanent institutions of the State from the leader of the
    incumbent Government. The separation of offices between Head of
    Government and Head of State, a non-executive President, helps
    maintain a symbolic separation between the incumbent
    Government, which is party-political, and the permanent
    institutions of the State as such, which are supposed to be
    politically neutral and universal. The President symbolically
    ensures that the ruling party or the coalition is separate from a
    non-partisan embodiment of the whole.57 President is a neutral
    and an impartial arbiter who while forming his “opinion” under
    Article 209(5) is to weigh both: the sanctity of a non-partisan
    judicial institution and the grievance of the political government
    against the judge in order to give true expression to judicial

57 See Elliot Bulmer, Direct Democracy: International IDEA Constitution-Building Primer 3,
International Institute for Democracy and Electoral Assistance, (2nd ed. 2017)
Const. P. No.17 of 2020, etc. 38
independence and judicial accountability. Only someone with the
stature and position of a President can perform this challenging
role.

  1. The existence of judicial independence depends on the
    existence of legal arrangements that guarantee it. Judicial
    independence is composed of two foundations: independence of the
    individual judge and the independence of the judicial branch. The
    independence of the individual judge means that the judge is
    subject to no authority other than the law58. A judge will have
    “nothing to influence or control him but God and his conscience.”59
    On matters of adjudication, the judge is alone. Second limb of
    judicial independence is the institutional environment in which the
    judge operates. It is a protective institutional wall around the
    individual judge that will guard him against the possibility of any
    inside or outside influence. A partisan Government or other
    specialized State institutions, at times, in order to achieve their
    political ends may try to influence or pressurize judges and invoke
    the removal process to penalize or intimidate judges. The real aim
    of proceedings may be to remove a judge whose judgments are
    considered troublesome by those in authority.60 At this junction,
    the protective institutional design that guards the judge against
    external onslaughts becomes critical. The constitutional scheme of
    independence of judiciary is not to shut its eyes and ears to the
    complaints against the judge but to ensure that the judge gets to
    enjoy his constitutional protections till the last.
  2. Separation of powers is the backbone of our democracy. The
    purpose of separation of powers is to strengthen freedom and
    prevent the concentration of power in the hands of one government
    actor in a manner likely to harm the freedom of the individual and
    other institutions. The principle requires that each branch of the
    State has a function that is its major function and the other
    branch should not impinge upon its nucleus. The institutions of
    the State have to walk the tightrope of checks and balances while

58 Aharon Barak, The Judge in a Democracy, Princeton University Press (2006).
59 Evans v. Gore, 253 U.S. 245, 250 (1919) (quoting John Marshall, cited at Debates, Va. Conv.
1829-1831, 616, 619).
60 See J. van Zyl Smit, The Appointment, Tenure and Removal of Judges under Commonwealth
Principles: A Compendium and Analysis of Best Practice (Report of Research Undertaken by
Bingham Centre for the Rule of Law), 79-81.
Const. P. No.17 of 2020, etc. 39
operating in their designated spheres outlined clearly in the
Constitution. One branch of the State should not be able to
destabilize or weaken the other branch. Constitutional design
protects this through the principle of separation of powers and
President’s role under Article 209(5) actualizes this balance. This is
a constitutional principle. It may not be written in the Constitution
but it is written within the lines. The courts in a democracy have
to give expression to this principle when interpreting the
Constitution.

  1. One of the basic principles of democracy is the Rule of Law.
    From the standpoint of democracy, the most important of the
    meanings is the substantive rule of law. The substantive rule of
    law is the rule of proper law, which balances the needs of society
    and the individual and strikes a balance between society’s need for
    political, economic and judicial independence, on the one hand,
    and the right to personal liberty, and human dignity on the
    other.61
  2. Constitution is philosophy, politics, society, and law all
    rolled into one.62 Judiciary is the guardian of the Constitution. In
    interpreting a Constitution, other than the express language of the
    Constitution, its implied language conveys a meaning between the
    lines, which is otherwise invisible in words – it is derived from the
    structure of the Constitution. Any interpretation of the
    Constitution must be grounded in these foundational principles.
    Role of the President when considered in the background of these
    fundamental principles, best assumes the role of an “arbiter” and a
    “buffer” between a partisan government and a permanent neutral
    branch of the State, the judiciary. The President is to examine the
    “information” placed before him under Article 209(5) as Head of
    State, acting as an arbiter between the two branches of the State,
    discharging his function as a person representing the unity of the
    Republic. This unique function of the President is co-equal with
    the role of the Council under the same clause of Article 209 of the
    Constitution. Both have to form an “opinion;” both have to perform
    a somewhat quasi-judicial function; both have to take a decision

61 Aharon Barak, The Judge in a Democracy, Princeton University Press (2006).
62 ibid
Const. P. No.17 of 2020, etc. 40
on the basis of the information before them. Personal opinion of
the President under Article 209(5) actualizes the non-partisan role
of the President and provides a check on any partisan adventurism
by the Government of the day against the judiciary. If the President
is just a rubber stamp acting on the advice of the Cabinet, a hostile
Government can, theoretically, file references against a number of
judges of the constitutional courts, resulting in initiation of
inquiries against all of them. Mere initiation of inquiry against the
conduct of the constitutional court judges is enough to tarnish the
image of judiciary, and weaken public confidence and public trust
the nation reposes in the judicial institution.

  1. At a textual level, “information” is placed before the President
    under Article 209(5). This information is then processed into a
    Reference only if the President forms an opinion that the
    information makes out a case for inquiry against the judge. If
    information is actually an “advice,” the words “President is of the
    opinion” become redundant. Second, it is absurd to conclude that
    under the same provision, the Council is empowered to form its
    own “opinion” but the President is not. Under Article 48(2), where
    the Constitution vests the President with a more personalized task
    of exercising his “discretion,” he performs the same himself and
    not on the advice of the Cabinet or the Prime Minister. Quite
    similar is the function of forming an “opinion” which can only be
    done by the President himself.
  2. As a Head of the State, the President is the best person to
    review the “information” placed against a constitutional court
    judge by a constituent of the State, be it Federal, Provincial or
    Local Government. The executive function of the Government is till
    the placement of “information” before the President. Beyond that,
    the formation of “opinion” by the President falls outside the realm
    of the executive function and becomes a more quasi-judicial
    function in nature. Parallel needs to be drawn between the two
    streams: the President and the Council. While the Council
    actualizes this quasi-judicial function through the Supreme
    Judicial Council Procedure, 2005, the President does no different
    without such procedure. This leaves no margin for a mechanical
    act by the President on the advice of the Cabinet.
    Const. P. No.17 of 2020, etc. 41
  3. While the Constitution vests the President with the power to
    form an “opinion”, it is difficult to imagine that this power is to be
    exercised by him in a mindless and mechanical manner, thus
    reducing him to just a rubber-stamp, who upon receiving
    information is to simply direct the Council to inquire into the
    conduct of a constitutional court judge. His role under Article
    209(5) is not to execute an executive function, but act as an arbiter
    on a conflict between two State institutions. Failure of the
    President to form his “opinion” in this case has resulted in the
    President rubber stamping unconstitutional and illegal
    “information” into a Reference by directing the Council to inquire
    into the matter of the Petitioner Judge. This has compromised the
    neutrality of the office of the President and besmirched his exalted
    office. If expression is to be given to the constitutional scheme and
    foundational principles discussed above, the constitutional role of
    the President is best actualized as an independent arbiter under
    Article 209 when he is to form his personal opinion. To this
    conclusion, I also find support from the majority judgment of a 13-
    Member Full Court Bench of this Court in CJP Iftikhar Chaudhry
    case.63 The allegations of malafide in that case were made against
    the President, and the Court accepting those allegations quashed
    the Reference impugned therein. If the President had to act, in the
    opinion of the Court, on and in accordance with the advice of the
    Prime Minister, the proof of malafide against the President would
    not have entailed the result of quashment of the Reference.
    Further, in summarizing the various steps in the process of
    making a Reference by the President, the Court mentioned,
    amongst other steps, receipt of information by the President,
    formation of opinion by the President and direction (Reference) by
    the President; no step regarding advice of the Prime Minister was
    mentioned.64 Entry 35 in Schedule V-B to the ROB that provides
    that President is to act on advice of the Prime Minister for making
    Reference to the Council under Article 209(5) is, therefore, ultra
    vires the Constitution and is so declared.
  4. In the present case, the President did not apply his mind and
    form his own opinion on the “information” received; he simply

63 See CJP Iftikhar Chaudhry case (supra) , per Khalil-ur-Rehman Ramday, J, paras 107, 196.
64 See Ibid., paras 64, 65.
Const. P. No.17 of 2020, etc. 42
approved the advice of the Prime Minister and signed the draft
Reference submitted with that advice. The formation of opinion
and the direction to the Council to hold an inquiry was, therefore,
not that of the President; both these acts are declared to have been
made without jurisdiction and coram non judice, and thus
unconstitutional and of no legal effect.
“Information” does not constitute Misconduct

  1. Without prejudice to the findings and declarations given
    above that the information (evidence) collected against the
    Petitioner Judge by the ARU with the blessing of the Law Minister
    was legally inadmissible, it is underlined that the said information
    even if considered, does not constitute misconduct. The allegations
    against the Petitioner Judge in the “information” put up as a
    “Summary for the Prime Minister” that ultimately took the form of
    the Reference relate to the alleged violation of the Income Tax
    Ordinance, 2001 (“ITO”), Anti-Money Laundering Act, 2010
    (“AMLA”) and the Foreign Exchange Regulation Act, 1947 (“FERA”).
    There is no charge of corruption or acquisition of the foreign
    properties by the Petitioner Judge in names of his spouse and
    children as ostensible owners (benamidar). The stance of the
    Petitioner Judge is that no violation of the said laws is made out
    against him and no misconduct on his part can be spelt out from
    the assertions and allegations made in the Reference.
    Income Tax Ordinance, 2001
  2. The alleged violation of Section 116(1)(b) of the ITO is the
    mainstay of the Reference filed against the Petitioner Judge.
    Provisions of the said Section are equivocal, and attract different
    constructions. There has not yet been any judicial interpretation of
    it. The parties have, therefore, proposed different interpretations
    on it. It would be advantageous to cite the provisions of Section
    116(1)(b) of the ITO before embarking on discussion on the
    proposed interpretations, for ready reference:
  3. Wealth statement.— (1) The Commissioner may, by notice
    in writing, require any person being an individual to furnish, on
    the date specified in the notice, a statement (hereinafter referred
    to as the “wealth statement”) in the prescribed form and verified
    in the prescribed manner giving particulars of —
    ………………………………………………………………………….
    Const. P. No.17 of 2020, etc. 43
    (b) the total assets and liabilities of the person’s spouse,
    minor children, and other dependents as on the date or dates
    specified in such notice;
    (2) Every resident taxpayer being an individual filing a return of
    income for any tax year shall furnish a wealth statement and
    wealth reconciliation statement for that year along with such
    return.
    At the outset, it is pointed out that Section 116(1), ITO simply
    provides for issuance of notice to a taxpayer for filing the wealth
    tax statement or wealth reconciliation statement alongwith the
    income tax return and provides for particulars to be included in
    such a statement. In case a taxpayer has already filed the above
    statements alongwith his return, Section 116(1) appears to have no
    relevance. It is not the case of the Federation that the Petitioner
    Judge failed to file the wealth tax statement or wealth
    reconciliation statement. In case the said statements are deficient
    or incorrect, the tax department can issue notice to the taxpayer
    under Section 120(3) and consider the case in the light of Section
    111 of the ITO. No such notice or proceedings were initiated by the
    FBR against the Petitioner Judge. Directly leveling allegation of
    violation of Section 116(1)(b) against the Petitioner Judge in this
    background is misconceived besides being premature.
  4. It was argued on behalf of the Petitioner Judge, by referring
    to the principle of noscitur a sociis (known by its associates), that
    the meaning of the word “spouse” should be determined by
    considering the words “minor children, and other dependents” with
    which the former word is associated in clause (b) of Section 116(1).
    Therefore, an individual resident taxpayer, as per his version, is to
    mention the assets of his or her spouse in the wealth statement
    only if the latter is his or her “dependent”. The stance of the
    Federation, on the other hand, was that the word “spouse” should
    be given its literal meaning. The Legislature has not used the word
    “dependant” with the word “spouse”. Every individual resident
    taxpayer, as per its stance, is to mention the assets of his or her
    spouse in the wealth statement irrespective of the fact that the
    latter is or is not his or her “dependent”. The possible
    interpretations do not end here. Rather, two other interpretations
    were also put to these provisions by the FBR while prescribing the
    forms of wealth statement. In the form prescribed for the tax year
    Const. P. No.17 of 2020, etc. 44
    2013, a taxpayer was required to declare the assets of his or her
    spouse if he or she had not filed income-tax return and wealth
    statement independently; while, in the form prescribed for the tax
    year 2015, a taxpayer was required to declare only those assets of
    his or her spouse which had been acquired by funds provided by
    that taxpayer. There are, as such, at least four possible
    interpretations of the provisions of Section 116(1)(b) of the ITO.
  5. The matter of alleged tax violation has not reached this
    Court in its usual legal course routing through the tax authorities,
    tax tribunal and the High Court. I would therefore not give any
    definite finding on the said, or any other, possible interpretations
    of Sections 116(1)(b) of the ITO. I would rather examine the
    reasonability of forming the opinion of commission of misconduct
    against the Petitioner Judge on the basis of alleged violation of the
    provisions of Section 116(1)(b), and in doing so would test the
    formation of opinion on all the said four canvassed interpretations.
  6. One foreign property was purchased by the spouse of the
    Petitioner Judge in the year 2004, before his elevation to the Bench
    of the Balochistan High Court in 2009; this property was therefore
    completely irrelevant for forming opinion of misconduct and
    making the Reference against the Petitioner Judge. The other two
    foreign properties were acquired by the spouse and children of the
    Petitioner Judge in the year 2013, after his said elevation; they
    were, therefore, to be declared in the tax year 2013 by the
    Petitioner Judge if there was any legal obligation on him, at that
    time, to do so. The children of the Petitioner Judge were not minors
    in the year 2013; therefore, no question as to his obligation to
    declare their assets arises under Section 116(1)(b) of the ITO. The
    current dispute relates to his alleged obligation to declare the
    assets of his spouse only. Therefore, the question is whether the
    Petitioner Judge was under any legal obligation to declare the
    foreign assets of his spouse in his wealth statement along with his
    tax returns filed in the tax year 2013. The simple and
    straightforward answer as per its own interpretation of the FBR
    that was in vogue in 2013 is that he was not. As afore-mentioned
    the FBR, in the wealth statement form prescribed for the tax year
    2013, required a taxpayer to declare the assets of his or her spouse
    Const. P. No.17 of 2020, etc. 45
    if he or she had not filed income-tax return and wealth statement
    independently. It is an admitted fact that the spouse of the
    Petitioner Judge had filed her income-tax return and wealth
    statement independently, in the year 2013. It, therefore, appears
    that there was no legal obligation on the Petitioner Judge to
    declare the assets of his spouse in his wealth statement as per the
    requirement of the FBR prevailing in the year 2013. The
    departmental second interpretation expressed in the form
    prescribed for the tax year 2015 is that a taxpayer is required to
    declare only those assets of his or her spouse which had been
    acquired by funds provided by that taxpayer. There was neither
    any allegation in, nor was any material annexed with, the
    “Summary” initiated for forming the opinion of misconduct against
    the Petitioner Judge that the funds for purchase of the foreign
    assets were provided by the Petitioner Judge to his spouse. No
    opinion of misconduct against the Petitioner Judge, thus, could
    have been made on the basis of these two departmental
    interpretations of the provisions of Section 116(1)(b), ITO. It may be
    pertinent to mention here that though the courts of law are not
    bound by departmental interpretations and constructions of the
    laws yet they give due weight and consideration to such
    interpretations and constructions, and do not disregard them
    without cogent reasons. Such constructions have their basis in the
    necessary practice of executive and administrative officers
    construing statutes to execute and apply them, in advance of the
    judicial construction. These officers are usually expert on the
    subject dealt with by the law, and their practical construction of
    the law provides a sound basis for judicial interpretation.65
  7. The interpretation offered by the Petitioner Judge is that an
    individual resident taxpayer is to mention the assets of his or her
    spouse in the wealth statement if the latter is his or her
    “dependent”. For examining this interpretation, it would be useful
    to refer that during the hearing, the spouse of the Petitioner Judge
    requested the Court for allowing her to appear before the Court
    through video-link and make a statement. Her request was
    allowed. She then made her statement and referred to certain
    documents, copies of which were subsequently submitted in

65 NS Bindra’s Interpretation of Statutes, p.859-861 (10th Ed. 2007).
Const. P. No.17 of 2020, etc. 46
separate sealed envelopes to all Judges sitting in this Full Court
Bench the next day. The documents submitted were: (i) copies of
income tax returns and wealth statements for Tax Years 2018 and
2019; (ii) title documents in respect of agricultural land owned by
her; (iii) evidence of liquid investment with National Savings Centre
together with income derived therefrom; and (iv) certificate from a
scheduled bank confirming movement of funds in her private
foreign currency account etc. The wealth statements submitted by
her include the foreign properties owned by her, the non-disclosure
whereof in his wealth statements by the Petitioner Judge is the
main basis for filing of the Reference against him. The FBR, in
response to her statement, also submitted her available tax record.
These documents include her income tax returns and wealth
statements for various tax years including the Tax Years 2018 and
2019, and statutory notices requiring filing of tax returns for
certain years when these were not voluntarily filed. The said
documents and record amplify the version of the Petitioner Judge
that his spouse is a separate and independent taxpayer/assesse in
the records of the FBR, who has been separately and
independently filing tax declarations in relation to income derived
by her from her own sources. The tax record furnished by the FBR
does not rebut this assertion, rather supports the same. In the
background of this admitted position, the spouse of the Petitioner
Judge cannot be said to be his dependent. Thus, the FBR could
not have asked the Petitioner Judge to declare her assets in his
wealth statement filed with the tax return in the tax year 2013,
and sought explanation from him regarding the sources of
purchase of the assets by his spouse. In arriving the conclusion
that the spouse of the Petitioner Judge was not his dependent in
the year 2013, I am supported by the following observations made
in the case of Imran Khan v. Nawaz Sharif:66

  1. As far as the issue regarding respondent No.6 namely
    Mariam Safdar allegedly being a ‘dependent’ of her father namely
    Mian Muhammad Nawaz Sharif is concerned I have found that
    the material produced before us sufficiently established that
    respondent No.6 was a married lady having grown up children,
    she was a part of a joint family living in different houses situated
    in the same compound, she contributed towards some of the
    expenses incurred by the joint family, she submitted her
    independent tax returns, she owned sizeable and valuable
    property in her own name, she was capable of surviving on her

66 PLD 2017 SC 265.
Const. P. No.17 of 2020, etc. 47
own and, thus, she could not be termed or treated as a
‘dependent’ of her father merely because she periodically received
gifts from her father and brothers. In this view of the matter
nothing turned on respondent No.1 not mentioning respondent
No.6 as his dependent in the nomination papers filed by him for
election to NA-120 before the general elections held in the country
in the year 2013. (emphasis supplied)

  1. In terms of the scheme envisaged in the ITO, once an asset is
    claimed by a person to have been sourced by him or her and, more
    so, such asset is also declared in the statutory declaration/wealth
    statement by that person, then only that person could be
    questioned and required to explain the source of acquiring such
    asset by the tax authorities. In the event that person fails to
    properly explain the source, an addition could be made in his or
    her income and that added income is taxed accordingly. Under no
    circumstances, any other person could be made directly or
    indirectly part of such proceedings. Thus, no opinion of
    misconduct against the Petitioner Judge could have been formed
    on the basis of this interpretation of the provisions of Section
    116(1)(b), ITO.
  2. The interpretation suggested by the Federation is that every
    individual resident taxpayer is to mention the assets of his or her
    spouse in the wealth statement irrespective of the fact that the
    latter is or is not his or her “dependent”. Section 114 of the ITO
    requires that the tax return for any tax year has to be accompanied
    by the wealth statement required under Section 116. In case a
    wealth statement is not filed or is deficient, the income tax return
    filed is not considered complete. In case of any deficiency, the
    Commissioner, FBR is empowered to issue a notice to the taxpayer
    under Section 120(3) of the ITO, informing the deficiency and
    providing him time to rectify it. If it is cured during the given time,
    the tax return is considered complete and accepted. Therefore, if
    the Commissioner, FBR had been of the view, as per the
    interpretation suggested by the Federation, that the Petitioner
    Judge was under legal obligation to declare the assets acquired by
    his spouse in the year 2013, in his wealth statement filed with tax
    return of 2013, he should have issued notice to the Petitioner
    Judge specifying the defect and providing him time to rectify it. The
    Petitioner Judge, in that case, could have defended that notice on
    all legal grounds available to him including the interpretation
    Const. P. No.17 of 2020, etc. 48
    proposed by him as well as the interpretations put to the
    provisions of Section 116(1)(b) by the FBR itself in the forms
    prescribed for wealth statement. No such notice, however, was
    issued to the Petitioner Judge. Further, if the Commissioner, FBR
    on the basis of some “definite information” had been satisfied that
    that the tax return and wealth statement filed by the Petitioner
    Judge in the year 2013 were not accurate and some income
    chargeable to tax had escaped taxation, he could have issued an
    amended assessment order under Section 122(5) of the ITO, after
    hearing the Petitioner Judge, within a period of five years
    prescribed in Section 122(2) of the ITO. No such legal exercise was
    done. Therefore, without any determination of, or even initiation of
    legal proceedings on, the alleged violation of Section 116(1)(b) by
    the Commissioner, FBR either under Section 120 or under Section
    122 against the Petitioner Judge, no opinion of misconduct against
    the Petitioner Judge could have been formed on the basis of the
    interpretation suggested by the Federation also.
  3. In the last on the current head of discussion, I consider it
    important to highlight that Section 116A which requires a resident
    individual taxpayer to furnish statement of foreign assets, was
    inserted in the ITO in the year 2018 by the Finance Act, 2018. This
    amendment made in the year 2018 prima facie shows that there
    was earlier no obligation on a resident individual taxpayer to
    furnish such statement of even his own foreign assets, much less
    the foreign assets of his spouse and children.
    Anti-Money Laundering Act, 2010
  4. The Federation argued that being a case of ‘concealed
    income’, the matter also falls under the AMLA by referring to
    following entries in the Schedule to the AMLA:
    Section XIIA The Income Tax Ordinance, 2001
  5. Prosecution for false statement in verification-where tax
    sought to be evaded is ten million rupees or more
    192A. Prosecution for concealment of Income-where tax sought to
    be evaded is ten million rupees or more
  6. Prosecution for improper use of National Tax Number
    Certificate – where tax sought to be evaded is ten million rupees
    or more
    Const. P. No.17 of 2020, etc. 49
  7. Prosecution for abetment – where tax sought to be evaded is
    ten million rupees or more.
    The argument is hopelessly misconceived and misdirected. The
    aforesaid entries in the Schedule were inserted vide Notification
    No. SRO 425(I)/2016 dated May 14, 201667 through which offences
    under Sections 192, 192A, 194 and 199 of the ITO were listed as
    “predicate offences” for the purposes of invocation of the AMLA. In
    the present case, admittedly all three foreign properties were
    acquired prior to May 14, 2016; therefore, the AMLA is not
    applicable at all. Needless to mention, that the principle of
    prohibiting retrospective punishment is a guaranteed fundamental
    right under Article 12 of the Constitution. Even otherwise, it is
    manifestly clear that the Legislature has put a precondition that
    ‘tax sought to be evaded is ten million rupees or more’ in all the
    four entries mentioned above. Thus, for the invocation of the AMLA
    the law presupposes conclusion of proceedings under the relevant
    provisions of the ITO to determine the said threshold and that too
    in relation to tax liability for the period on or after May 14, 2016.
    No such determination has taken place; hence, there is no
    application of the AMLA to the present case.
    Foreign Exchange Regulations Act, 1947
  8. The FERA provides for regulation of payments and dealings
    in foreign exchange and securities, and the import and export of
    currency and bullion. Sections 4 and 5 of the FERA provide that
    no one can deal in foreign exchange68 except through an
    authorized dealer and imposes restrictions on transfer of money
    outside Pakistan. There is no evidence on the record that
    establishes or even prima facie shows any violation of the FERA
    against the Petitioner Judge. The Federation pointed out no
    violation of the FERA, even during the arguments.
  9. In view of the above analysis of the relevant provisions of the
    ITO, AMLA and FERA, no violation of any provision of those laws is
    made out against the Petitioner Judge on the basis of the
    assertions and allegations made in the “information” given in the
    “Summary for the Prime Minister” that ultimately took the form of

67 Published in Official Gazette on May 20, 2016.
68 Defined in section 2(d) of FERA to mean foreign currency , etc.
Const. P. No.17 of 2020, etc. 50
the Reference; therefore, no opinion as to the prima facie
commission of any misconduct by the Petitioner Judge could have
reasonably been made on the basis of that “information.”
Code of Conduct and Vicarious Responsibility of a Judge

  1. A constitutional court judge can be removed from office if he
    or she commits “misconduct” as provided under Article 209 of the
    Constitution. “Misconduct” is a constitutional term and must draw
    its spirit and meaning from the Constitution. It is important that
    the meaning of constitutional “misconduct,” the scheme of the
    Code of Conduct and the scope of the impeachable misconduct of a
    constitutional court judge must flow from the standard of judicial
    integrity set out by the Constitution. The constitutional standard of
    judicial integrity lies in the oath of a constitutional court judge, as
    discussed earlier; falling short of it would amount to impeachable
    misconduct. Under Article 209(8) of the Constitution, the Council
    issues a Code of Conduct, which is to be observed by the judges of
    the constitutional courts. This Code of Conduct for the Judges of
    the Supreme Court and High Courts69 (“Code”) carries additional
    standards and etiquettes for Judges to follow in order to uphold
    the prestige and honour of the judicial institution. The Code
    formulated by the Supreme Judicial Council cannot control the
    constitutional meaning of the term “misconduct” but provides a
    helpful guideline. The Code is a basket of judicial obligations,
    etiquettes, and courtesies of varying degrees and effect, covering
    both judicial character and judicial behavior of a Judge.70 While
    some Articles of the Code directly impinge on judicial integrity,
    others simply pass as mere guidelines of good behavior, civility and
    mannerism in conducting the court. It cannot be said that every
    deviation of the Code, how insignificant it may be, would constitute
    impeachable misconduct. For example, a judge’s failure to decline
    to act in a case involving his own interest71 may constitute an
    impeachable misconduct, while in case a judge who gets a
    speeding ticket for driving fast and offends the requirement of
    being law-abiding may not be liable for an impeachable

69 Framed under the Constitution of 1962 and amended from time to time. Final version to date is
till the last amendment made in the year 2009.
70 See the preamble to the Code.
71 Article III of the Code.
Const. P. No.17 of 2020, etc. 51
misconduct. Similarly, a judge who is not punctilious enough in
sitting and rising in court, cannot be removed on this pretext,
unless ofcourse, these violations are so frequent and regular that
they weigh heavily on the public confidence and legitimacy of the
judicial institution. So each case has to be seen in its own peculiar
facts after examining the nature of the violation. It is underlined
that the Code largely lays down judicial obligations and etiquettes
for the Judge in his official capacity. Only Article II of the Code
provides generalized yet more personal standards like “a Judge
must be God-fearing, law-abiding, abstemious, truthful of tongue,
wise in opinion, cautious and forbearing, blameless and untouched
by greed.” These saintly qualities are personal to the Judge. We
must also remember that judges are humans at the end of the day,
no matter how glorified and hallowed their office and the Code may
make them appear. Chief Justice McLachlin72 said: “Judges are
not living Oracles. They are human beings, trained in the law, who
struggle to understand the situations before them and to resolve
them in accordance with the law and their conscience.”73
Impeachable misconduct is when there is a violation of law or
violation of the Code that is so grave that it ruptures judicial
integrity, tarnishes public confidence and pulls down legitimacy of
the judicial institution. Short of this, it might be misconduct but
not impeachable misconduct. Like under the service laws, gravity
of misconduct determines the penalty, which ranges from mere
censure all the way to dismissal from service. It is commonsensical
that not every infraction leads to removal of a constitutional court
judge or constitutes impeachable misconduct. The best test is to
see if the judicial integrity of a judge has been undermined
resulting in lowering the public confidence and trust in the
judiciary, thus impairing impartiality and legitimacy of the judicial
institution.

  1. Judicial integrity and the Code are judge specific, largely
    covering judicial conduct and partly his personal behavior. The
    standards under the Code extend to the judge and judge alone.
    The Code has no jurisdiction over the family, relatives and friends
    of the judge. It is certainly ideal but it would be unfair to expect

72 Chief Justice of Canada (2000-2017).
73Judging in a Democratic State: Remarks of the Right Honourable Beverley McLachlin, P.C.
Chief Justice of Canada.
Const. P. No.17 of 2020, etc. 52
that the spouse and children of the Judge must be equally “Godfearing, law-abiding, abstemious, truthful of tongue, wise in
opinion, cautious and forbearing, blameless and untouched by
greed.” The Code has no concern with the family or friends of the
judge. Infact, it is totally impractical to think otherwise. Let us
assume that the spouse or the family of a judge were remiss in
managing their financial and tax affairs. In the absence of any
charge or evidence of corruption against the judge, if the judge had
time and again asked his spouse and family to be more careful and
responsible in their tax matters, but they for some reason did not
do so, what is the judge supposed to do in such a situation?
Should the judge abandon his spouse and the family? Does the
Code provide an answer? Does the Code expect and require that
families of the judges must be exemplary and ideal members of the
society? And if they do not come up to the expectation or if there is
even the slightest of infraction on their part, the judge is liable for
their misconduct? Is this responsibility part and parcel of the
terms and conditions of service of a constitutional court judge? I
think not. The Code is judge specific document and does not
extend to family members and in no event, holds a judge
vicariously responsible for the conduct of his family – his spouse
and children – who are independent, natural and legal persons in
their own right and can do whatever they want. “Conduct” and
“misconduct” are personal to a judge under the Code. Like any
other citizen, a judge cannot be held accountable for the conduct
of someone else, there is no such thing as vicarious responsibility
of a judge, unless the law requires it or there is evidence that the
wrongdoings of the judge have been concealed behind the family
façade. In the case of Chief Justice of Gibraltar,74 Lord Hope (with
whom Lord Rodger and Lady Hale agreed) while answering the
question that to what extent, and in what circumstances, is a
judge to be held accountable for the actions of his or her spouse or
other close relatives, observed: “The days are long gone when a
husband and wife were treated as one person in law and the
husband was that person. It is not unknown for senior figures in
public life to have spouses or partners who pursue their own
careers and interests, in the course of which they may say or do

74 Hearing on the Report of the Chief Justice of Gibraltar, [2009] UKPC 43. (4-3 minority view)
Const. P. No.17 of 2020, etc. 53
things that, are controversial and embarrassing. Any difficulties
that this may give rise to should be resolved between themselves, if
they can be resolved at all, in private. Judges are not to be taken
as supporting or endorsing their spouse’s or partner’s conduct if
they do not publicly dissociate themselves from it. The law should
recognize that they are independent actors and that the deeds of
the one are not to be visited on the other.” I fully subscribe to his
views. Unless the personal or official conduct of the judge
threatens public confidence in the judicial institution or the
legitimacy of the judicial institution, the question of impeachable
misconduct does not begin to arise.
Publicizing the Reference

  1. The matter of leaking and publicizing the filing of the
    Reference against the Petitioner Judge and of the allegations made
    therein is also of great concern and requires serious consideration.
    The Council has structured its discretion to process any
    “information” received in the form of a complaint, to make the
    preliminary assessment thereof and to conduct the “inquiry” by its
    Procedure of Inquiry, 2005. Paragraph 13 of the Procedure of
    Inquiry, 2005 provides for the proceedings of the Council to be
    conducted in camera and also bans reporting the proceedings of
    the Council. Validity of the Procedure of Inquiry, 2005 particularly
    of its Paragraph 13 was challenged in Justice Siddiqui Case,75 but
    was upheld by this Court. Purpose of Paragraph 13 was stated to
    protect both the Judge whose conduct and capacity is to be
    inquired into and the institution of the judiciary. The Court held
    that the necessity of in camera proceedings prevails over the right
    to information provided by Article 19A of the Constitution, and
    observed that due to an open trial the name of a Judge facing
    inquiry could be maligned even though the allegations may
    eventually be rejected by the Council. The Court directed in clear
    terms that “the process of determination whether any prima facie
    case has been made for proceedings under Article 209 of the
    Constitution in any event should be held in camera”. The Court
    thus put an absolute restriction of confidentiality on the process of
    preliminary assessment of the allegations made against a

75 Shaukat Aziz Siddiqui v. Federation of Pakistan, PLD 2018 SC 538.
Const. P. No.17 of 2020, etc. 54
constitutional court judge. This restriction, therefore, equally
applies to publicizing the Reference filed by the President and the
allegations made therein. In the context of publicizing, proceedings
of preliminary assessment of “information” conducted by the
President is similar and equal to proceedings by the Council.
Therefore, if the proceedings are to be conducted by the Council in
camera, then so should be the proceedings by the President.

  1. Under Article 204(2)(b) of the Constitution, the constitutional
    courts have power to punish any person who scandalizes the Court
    or otherwise does anything which tends to bring the Court or a
    Judge of the Court into hatred, ridicule or contempt. Publicizing a
    complaint or Reference and the allegations made therein, of which
    veracity is yet to be determined after inquiry by the Council,
    definitely tends to bring the Judge into hatred, ridicule and
    contempt, and thus attracts the provisions of Article 204 of the
    Constitution and the Contempt of Court Ordinance, 2003.
    Needless to say that hostile publicity of a matter through modern
    media can orchestrate an unprecedented level of hostility towards
    a particular individual, and even an institution.76 The restriction of
    confidentiality is to achieve a certain objective, i.e., preserving the
    integrity and honour of the judicial institution by maintaining
    public confidence. Publicizing a complaint or Reference
    undermines public confidence in the judiciary and lowers the
    esteem of the individual judge. The prestige and integrity of the
    judiciary is thus undermined without any concrete findings of
    misconduct against a Judge. The restriction is also to preserve,
    protect and safeguard the authority and dignity of the Judge who
    continues performing his functions on the Bench during the
    inquiry against him, as there is no provision in the Constitution to
    suspend his judicial powers during the inquiry proceedings.77
  2. In the present case, it is a matter of record that the Reference
    was publicized even when it had not yet been placed before the
    Council for preliminary consideration, as the filing of the Reference
    and the allegations made therein against the Petitioner Judge was

76 See David Corker and David Young, Abuse of Process and Fairness in Criminal Proceedings,
Butterworths Law (2000).
77 See Hlophe v. Constitutional Court of South Africa, (2008) ZAGPHC 289; and, Justice Paul
Uuter Dery v. Tiger Eye P.I., 2016 SC (J1/29/2015), Ghana Supreme Court.
Const. P. No.17 of 2020, etc. 55
published in several newspapers on May 28, 29, 30 and 31, and
June 1 and 3, 2019 and later during the proceedings before the
Council the matter was discussed in press conferences and TV talk
shows by the Government Ministers and even by the President of
Pakistan. The act of publicizing the filing of the Reference against
the Petitioner Judge and of the allegations made therein, is clearly
unconstitutional and falls within the scope of the provisions of
Article 204 of the Constitution and the Contempt of Court
Ordinance, 2003. The fact as to who leaked and publicised this
matter is disputed and cannot be resolved in the present
proceedings, but the matter cannot be left unnoticed and allowed
to go unchecked. Such omission would encourage repetition of the
mischief in future. Thus, I would leave the matter to the discretion
of the Hon’ble Chief Justice of Pakistan who is pater familias of the
judiciary and is to protect its prestige, honour, reputation and
integrity, to initiate appropriate proceedings for a thorough inquiry
of the matter so that the right to fair trial of the persons involved in
publicizing the Reference and the allegations made therein, may
not be infringed.
Is the Reference Malafide?

  1. An administrative authority must act in a bonafide manner
    and should never act for an improper motive or ulterior purpose or
    contrary to the requirement of the statute or improperly exercise
    discretion to achieve some ulterior purpose. The determination of
    the plea of malafide involves two questions, namely – (i) whether
    the administrative action is contrary to the object and
    requirements of law, and (ii) whether there is a personal bias or an
    oblique motive. Malafide of law is constituted when a person
    inflicts an injury upon another person in flagrant contravention of
    the law; he is not allowed to say that he did so with an innocent
    mind. He is taken to know the law and act within the law. He may,
    therefore, be guilty of malafide of law, although so far as the state
    of mind is concerned, he acts ignorantly and in that sense
    innocently. Thus, action of an authority is tainted with malafide of
    law when it takes the action which is so unreasonable, improbable
    or blatantly illegal that it ceases to be an action contemplated by
    the law under which it is purportedly taken, or takes the action by
    Const. P. No.17 of 2020, etc. 56
    violating the mandatory procedural requirements or without
    satisfying the jurisdictional requirements, or takes the action
    which no reasonable person could have taken on the basis of the
    available material.78 On the other hand, an unlawful action done
    designedly, willfully or wantonly and not accidently, thoughtlessly
    or negligently falls within the domain of malafide of fact. In such
    case, the action is taken in bad faith either to hurt the person
    against whom the action is taken or to benefit oneself or another,
    or in colourable exercise of powers for collateral or ulterior
    purposes not authorized by the law under which the action is
    purportedly taken.79 If the act suffers from malafide of law, the
    mischief is corrected by nullifying the act; malafide of fact,
    however, further entails the consequences of making the actor
    accountable also.
  2. It is true that malafide is difficult to prove against a public
    functionary because there is a presumption of regularity with
    regard to all official acts under Article 129(e) of the Qanun-eShahdat Order, 1984.80 However, this presumption of regularity is
    available only to official acts done by a person or authority
    competent to do that. The presumption of regularity cannot be
    attached to the acts done by the persons and authorities who have
    no legal authority to do those acts, rather a reverse presumption
    for lack of bonafide arises. In such a case, the onus to prove
    malafide does not remain as high. Malafide is inferential by
    construct. It can be drawn from direct or circumstantial
    evidence.81 The Court carefully takes into consideration the
    surrounding circumstances of the action; the conduct of the
    persons involved; the object and purpose to be achieved; and the
    nature of the illegality. The court, in a way, reconstructs the whole
    act and its backdrop, and then evaluates the fides of the action
    and its actors. If malafide on the part of the actors is apparent on
    the face of record, then the court of law seized with the matter is

78 See West Pakistan v. Begum Shorish Kashmiri, PLD 1969 SC 14, 32 (5-MB), per Hamoodur
Rahman, J; Sarwar v. Punjab, 1990 SCMR 999, 1001, per Shafiur Rahman, J.; and, Said Zaman v.
Federation, 2017 SCMR 1249, 1279-80 (5-MB), per Sh. Azmat Saeed, J.
79 See Abdul Rauf v. Abdul Hamid, PLD 1965 SC 671, 675 (5-MB), per B. Z. Kaikaus, J.;
Federation v. Saeed Ahmad, PLD 1974 SC 151, 170 (4-MB), per Hamoodur Rahman, C. J.,; Said
Zaman v. Federation, 2017 SCMR 1249, 1279-80 (5-MB), per Sh. Azmat Saeed, J.
80 Federation v. Saeed Ahmad, PLD 1974 SC 151.
81 See CJP Iftikhar Chauhdry case (supra) p.215, Per Muhammad Nawaz Abbasi, J.
Const. P. No.17 of 2020, etc. 57
not supposed to shut its eyes from taking notice thereof.82 While
full faith is given to public acts and record of the Government,
this assumption is overturned if malafide is borne out from the
record.

  1. If we start reading the events after the Faizabad Dharna
    judgment, one is compelled to conclude that the Petitioner Judge
    was deliberately targeted for his observations and directions made
    in that judgment, which perhaps were considered hostile and
    troublesome by those in power. This fact is floating on the record of
    the review petitions. The vengeance and resentment against the
    Petitioner Judge is more than visible from the strange and
    unprecedented assertions made for his removal on the ground of
    misconduct in the review petitions; soon it took shape of a vague
    complaint filed before an incompetent authority (ARU) housed in
    the office of the Prime Minister. The vengeance and resentment
    continued with the entertainment of the bogus complaint,
    unauthorized investigation and collection of evidence through the
    surveillance of the Petitioner Judge and his family, illegally seeking
    information from statutory institutions and using the illegally
    collected evidence for making advice to the President to send the
    Reference against the Petitioner Judge. These extraordinary facts
    and circumstances in the process of conducting the so-called
    accountability of the Petitioner Judge may be summarized in
    sequence, as under:
    i. The current ruling parties (PTI and MQM) aggrieved of
    some observations made by the Petitioner Judge in the
    Faizabad Dharna judgement make an unprecedented and
    astonishing assertion in their review petitions filed
    against that judgment that the Petitioner Judge has
    violated his Oath of Office and Code of Conduct for
    Judges, and is liable to be removed from office under
    Article 209 of the Constitution.

ii. The complainant makes the complaint for “Accountability
of Judges” to the ARU, housed in the Prime Minister’s
Office, and not to the Council, in the very next month of
filing of those review petitions.

82 Hazara Improvement Trust v. Qaisra Elahi, 2005 SCMR 678, p.698.
Const. P. No.17 of 2020, etc. 58
iii. The Chairman, ARU (substantive post – Special Assistant
to the Prime Minister) discusses the matter with the Law
Minister informally, without making any formal
consultation through the Cabinet Division (under whom
the ARU was to function as per decision of the Cabinet)
with the Law and Justice Division in accordance with
Rule 14 of the ROB.
iv. The Law Minister gives a “go ahead” to the ARU in an
informal discussion, without realizing the importance of
his advice, even oral, for inquiring into the veracity of the
allegations made in the complaint against Judges of the
Constitutional Courts.
v. The Chairman, ARU who is a Barrister-at-law, and not a
layman, knowing well that an oral advice of the Law
Minister has no value in the eye of law and without
looking for his own legal authority to inquire into the
allegations made against Judges of Constitutional Courts,
initiates the inquiry into the allegations made in the
complaint.
vi. The Chairman, ARU makes the decision alone to initiate
the process of inquiring into the allegations made in the
complaint, and does not obtain the opinion of or consults
with the Members of the ARU as to whether the
institutions they represent can inquire into the
allegations made in a complaint against a constitutional
court judge.
vii. The Chairman, ARU decides to proceed for accountability
of the judges of constitutional courts, and not for recovery
of their alleged foreign assets as per the so-called
mandate of the ARU, for he decides not to inquire about
the alleged properties of another judge named in the same
complaint, while noting that the said judge has already
resigned.
viii. The Members of the ARU make compliance of the
directions of the Chairman, ARU and share with him the
confidential information available in the record of their
Departments, by violating the provisions of the law under
which those Departments function.
ix. The Legal Expert, ARU, who is also a Barrister-at-law, in
compliance with the directions of the Chairman, ARU
causes surveillance of the Petitioner Judge and his family
for locating the properties in London, in violation of their
fundamental rights of liberty, privacy, dignity and
freedom of movement, and in derogation of the provisions
of IFTA.
Const. P. No.17 of 2020, etc. 59
x. The Member of the ARU from FIA, Assistant
Commissioner (Inland Revenue), Commissioner (Inland
Revenue), and DG (International Taxes), all four, submit
their reports on May 10, 2019. The Chairman, ARU then
examines all the reports and record submitted to him on
May 10, 2019, makes his final report on May 10, 2019
and submit it to the Law Minister on the very same day,
i.e., May 10, 2019. All proceedings stand concluded in
one day, with admirable alacrity.
xi. The Law Minister (a distinguished lawyer) does not raise
any objection to the inquiry conducted by the ARU for
accountability of a constitutional court judge, on receiving
the report of the Chairman, ARU. He rather, relying upon
the illegally collected evidence in that inquiry, makes a
“Summary for the Prime Minister” proposing to the Prime
Minister to advise the President to form an opinion that
the Petitioner Judge may be guilty of misconduct and
direct the Council to inquire into the matter under Article
209 of the Constitution.
xii. The Law Minister opines that the Petitioner Judge
appears to have committed “grave misconduct” by not
declaring three London properties owned by his spouse
and children and by not explaining the source of their
purchase in his tax record, without appreciating, rather
ignoring, the fact that no office or authority in Pakistan,
under the relevant law, has ever asked the spouse and
children of the Petitioner Judge to explain their sources to
purchase the said properties and their failure to declare
the same in their tax record, if there was any obligation to
declare the foreign assets under the ITO.
xiii. The Prime Minister remains unaware of the actions of his
Special Assistant, the Chairman, ARU working right
under his nose at the Prime Minister’s Office. Further, the
Prime Minister without asking the Law Minister or the
Chairman, ARU about their unconstitutional and illegal
investigation and evidence collection against a
constitutional court judge and without inquiring whether
any office or authority had asked the spouse and children
of the Petitioner Judge to explain the sources of purchase
of those properties and whether the properties owned by
the spouse and children of the Petitioner Judge attract
any liability of the Petitioner Judge, goes ahead, without
any application of mind, to advise the President to form
the opinion and direct the Council, and to sign the draft
Reference.
xiv. The President also does not ask the said questions and
approves the Prime Minister’s advice and signs the draft
Const. P. No.17 of 2020, etc. 60
Reference annexed with the Summary without applying
his independent mind, exercising his discretion and
forming his own opinion.
Such blatant violations of the law and Constitution by the
Chairman, and Legal Expert of the ARU, the officers of FBR, FIA
and NADRA, the Law Minister and the Prime Minister; undue haste
in processing the matter; dubious credentials and ring of
anonymity around Mr. Dogar (the complainant); oddity of
approaching ARU instead of the Council; failure on the part of ARU
to convincingly show how they located the addresses of the three
UK properties of the family of the Petitioner Judge; afterthought of
referring to 192.com and again failing to show how 192.com helped;
failure of the ARU to show who searched through 192.com and the
UK HM Land Registry, who registered with them and who paid for
it; keeping names of those persons in secret; resultant necessary
inference of having done the covetous transnational surveillance of
the Petitioner Judge and his family to dig out the addresses of the
three properties with support of the intelligence agencies; and
rushed and mechanical approval of the Summary by the Prime
Minister, all these facts and circumstances when read in the
background of the assertions made by the current ruling political
parties (PTI and MQM) in their review petitions filed against the
Faizabad Dharna judgment, lead to a clear and a convincing
finding that the whole process initiated under the garb of
accountability of the Petitioner Judge suffers from more than mere
malafide of law and jumps up into the realm of malafide of fact
also. In the present case, other than the legal and constitutional
violations, extraneous considerations, as mentioned above, have
come to surface, which reflect vindictiveness and ulterior motive.
Knowing well that there was no determination of tax violation of
the Petitioner Judge and no explanation of the spouse and children
of the Petitioner Judge was ever sought, the matter was still
pushed ahead with the collateral purpose of defiling the honour of
the Petitioner Judge and with the design to pressurize him into
resignation or lead to his removal. These facts go beyond malafide
of law and fall within the ambit of malafide of fact as they show
bad faith and colourable exercise of powers for collateral or ulterior
purposes not authorized by the law under which the actions were
purportedly taken. Therefore, the actions of entertainment of the
complaint, the investigation and surveillance for the collection of
Const. P. No.17 of 2020, etc. 61
evidence, the putting up of Summary before the Prime Minister by
the Law Minister and finally the approval of the Summary by the
Prime Minister and placing the “information” before the President
under Article 209(5) of the Constitution for removal of the
Petitioner Judge from office are found to be tainted with both
malafide of law and malafide of fact. All the Government actors
mentioned above are held responsible. As the buck stops with the
Prime Minister in a constitutional parliamentary democracy, the
major burden of these malicious actions fall on his shoulders who
also happens to be the leader of a political party that had filed the
review petition with an astonishingly unique prayer seeking ouster
of the Petitioner Judge for expressing an independent view.
Held

  1. In view of the above findings, all the acts and steps from the
    entertainment of the complaint till the sanction of the “Summary”
    for placement of the “information” before the President by the
    Prime Minister are declared illegal, without jurisdiction, malafide of
    law and fact, and thus unconstitutional and of no legal effect.
    While, the acts of the President approving the advice of the Prime
    Minister, and signing and sending the Reference against the
    Petitioner Judge are declared without jurisdiction and coram non
    judice, and thus unconstitutional and of no legal effect. The
    outcome of the said declarations is that:
    (i) the Reference against the Petitioner Judge is quashed,
    and as a result the proceedings, including the Show
    Cause Notice, before the Council stand abated;
    (ii) the authorities concerned are directed to initiate criminal
    and disciplinary proceedings against the Chairman, Legal
    Expert and Members of the ARU, as well as, against the
    other defaulting officials of FBR and NADRA for their
    illegal acts, under the IFTA, ITO and NADRA Ordinance,
    2000; and,
    (iii) the Registrar of this Court is directed to place the matter
    before the Hon’ble Chief Justice of Pakistan for
    considering to initiate appropriate proceedings for a
    thorough inquiry of the matter of leaking and publicizing
    the Reference and the allegations made therein, and for
    taking legal action against the persons found involved
    therein.
    I allow all the constitutional petitions in these terms.
    Const. P. No.17 of 2020, etc. 62
    Reasons for my Disagreement with the Short Order83
  2. Justice Ruth Bader Ginsburg84 once commented, “Judges
    disagree without being disagreeable.” While this is largely true for
    us judges, history is not as forgiving. Through Short Order dated
    19.06.2020 the Reference against the Petitioner Judge was
    quashed by unanimous opinion of all the members of this Full
    Court Bench. However, the Majority added certain directions to the
    FBR and the Council whereby the Commissioner, FBR was
    directed to issue notices under ITO to the spouse and children of
    the Petitioner Judge regarding the acquisition of the three foreign
    properties. He was also directed to decide the notices and the
    Chairman FBR was directed to submit a report of the decision to
    the Council. While the Council was asked to consider the matter by
    invoking its suo moto powers with or without there being a report
    filed by the Chairman, FBR. All these directions were to be
    actualized within a specified time-line provided in the Short Order.
    With respect, I could not persuade myself to concur with these
    directions. Here under are my reasons for the disagreement.
  3. The spouse and children of the Petitioner Judge like all other
    citizens of Pakistan are independent persons and enjoy an
    inalienable right to the protection of law. As they were not party to
    the instant proceedings and were never summoned or made a
    party to the proceedings by the Court, any adverse order against
    them, will deprive them of their inalienable right to due process
    under the Constitution and the law, and will contravene the wellentrenched and deep rooted principle of audi alteram partem. The
    Court cannot go against the grain, values and scheme of our
    Constitution and the established principles of law. After the
    Reference against the Petitioner Judge was unanimously quashed
    by this Full Court Bench, the case set out against the Petitioner
    Judge came to an end. In the absence of any allegations of
    corruption against the Petitioner Judge or of his holding foreign
    properties in the names of his wife and children as a trustee or a
    benamidar, this Court, and for that matter the Council, have no

83 Paragraphs 4-11, thereof.
84 Former Associate Justice of the Supreme Court of the United States (1933-2020)
Const. P. No.17 of 2020, etc. 63
concern with the assets and properties of the spouse and the
children of the Petitioner Judge.

  1. The FBR does not require any direction from this Court for
    taking any proceedings against any individual (including a
    constitutional court judge or his spouse and children) for a tax
    violation under the Income Tax Ordinance, 2001, if any. Similarly,
    the Council is also free and independent to exercise its suo moto
    jurisdiction against any judge of the constitutional courts when so
    required. It is nobody’s case that either the FBR or the Council
    were reluctant or unwilling to perform their functions under the
    law and the Constitution.
  2. The principle is more than settled that if an Authority has no
    jurisdiction in the matter under the law, the jurisdiction cannot be
    conferred on that Authority by an order of the Court.85 Under
    Section 122 of ITO an assessment order cannot be reopened after a
    lapse of five years by the FBR. Also, regulating the Tax
    Commissioner to function and perform his duties within a
    prescribed time-line, which is not so provided under the ITO
    amounts to entering the realm of judicial legislation.
  3. With respect, direction to the Chairman, FBR to send the
    Report to the Council would make the Chairman, FBR a
    complainant and the Report a new complaint. The FBR is an
    organ and instrumentality of the Federal Government and is not
    empowered to directly approach the President under Article 209 of
    the Constitution unless the Federal Government i.e., the Cabinet,
    approves to place such information before the Council through the
    President. The Federal Government of any of its Departments
    cannot make a complaint or report in relation to the conduct of a
    judge directly to the Council, and it has to place such a complaint
    or report in the form of “information” before the President to form
    his “opinion” and make direction (Reference) in accordance with
    the provisions of Article 209 (5) of the Constitution. Clear letter of
    the Constitution cannot be bypassed. A thing required by law to be

85 See Badshah Begum v. Additional Commissioner, 2003 SCMR 629.
Const. P. No.17 of 2020, etc. 64
done in a certain manner must be done in the manner as
prescribed by law or not to be done at all.86

  1. This Court cannot, it is submitted with respect, direct
    someone to file a complaint against a constitutional court judge
    before the Council and then make the Council consider the said
    complaint. This would have a far reaching effect as it would
    dismantle the independence and neutrality of the Council and the
    constitutional scheme under Article 209 that safeguards a
    constitutional court judge. It also flouts the right to fair trial under
    Article 10A of the Constitution. The Council is a constitutional
    body which enjoys suo moto powers to inquire into the conduct and
    capacity of a judge. Acting on its own motion (suo moto) and being
    asked to act on its own motion (suo moto) are two inconsistent and
    irreconcilable concepts. The Council is structured under the
    Constitution to exercise its suo motu powers independent of any
    extraneous influence. I am fortified by the observations of Ajmal
    Mian, C.J. made in Ikram case.87 The learned Chief Justice while
    declining the prayer, in that case, for issuing direction to the
    President to make Reference against some constitutional court
    judges under Article 209(5) of the Constitution observed that
    Article 209(5) “does not admit filing of a Constitutional petition for
    a direction to the Supreme Judicial Council or to the President to
    initiate proceedings of a judicial misconduct against a Judge of a
    superior Court. … This Court or a High Court cannot take upon
    itself the exercise to record even a tentative finding that a
    particular Judge has committed misconduct warranting filing of a
    reference against him under Article 209 of the Constitution.”
  2. In my view, the observation that the right to appeal under
    the ITO would be available to the spouse and children of the
    Petitioner Judge while simultaneously, the Council may also
    commence proceedings – can lead to conflicting results and
    thereby, may render the appeal under the ITO otiose and futile.
    Besides, the Council does not enjoy any power to issue directions
    to any judicial or a quasi-judicial forum to speed up pending
    matters against a constitutional court judge.

86 See Assistant Collector v. Khyber Electric, 2001 SCMR 838; S.M.C. No. 18 of 2010,
PLD 2011 SC 927; and, Zia Ur Rehman v. Ahmed Hussain, 2014 SCMR 1015.
87 Ikram Chaudhry v. Federation, PLD 1998 SC 103, para 11.
Const. P. No.17 of 2020, etc. 65

  1. The proceedings initiated through the short order after the
    quashment of the Reference against the Petitioner Judge would
    mean that the Council must now consider if a judge can be made
    vicariously liable for misconduct for his family’s affairs, a concept
    that is alien to the Code of Conduct and has nothing to do with
    judicial integrity as discussed above.
    In the end
  2. In our constitutional democracy, it is essential that everyone
    enjoys his or her domain of freedom, free from Governmental
    intrusion – lest it aims to check an unlawful activity. Privacy,
    liberty, autonomy and agency are integral parts of dignity and life
    and are cherished constitutional values that determine the
    frontiers of a living constitutional democracy. There can be no
    compromise on either judicial independence or judicial
    accountability. These are essential pillars, which together uphold
    public confidence and legitimacy of the judicial institution. The
    real and enduring strength of the judiciary, however, is anchored
    in ruling according to the Constitution and the law without fear or
    favour, irrespective of public perception and irrespective of who is
    before the court, an ordinary litigant or a judge of the highest
    constitutional court of the land. An American poet once said:
    The perfect judge fears nothing
  • he could go front to front before God;
    Before the perfect judge all shall stand back
  • life and death shall stand back
  • heaven and hell shall stand back.88
    (Syed Mansoor Ali Shah)89
    Judge
    Islamabad,
    the 04th November, 2020.
    Approved for Reporting.
    Sadaqat

88 Walt Whitman, “Great are the Myths” in Leaves of Grass.
89 Before parting I wish to appreciate and acknowledge the valuable assistance rendered by Mr.
Zafar Iqbal Khokhar, Research Officer cum Civil Judge, Supreme Court Research Centre. (SCRC)

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