Supreme Court’s (SC) short order in Justice Qazi Faez Isa case is an extraordinary piece of jurisprudence. While accepting Justice Isa’s petition and quashing the reference pending against him, seven SC judges have essentially set into motion another complaint against their brother judge and bound the Supreme Judicial Council to consider it ‘suo moto.’ I counted at least eight paragraphs of the short order which are contentious. But the majority opinion managed to have its way.

Justice Isa’s case is about judicial independence and also judicial accountability. No rule-of-law proponent can argue that judges should be able to hide behind independence to shun accountability. Public faith in integrity of the judicial process and legitimacy of judicial outcomes (even when one disagrees with the content of a decision) rests on the belief that judicial decisions are neither influenced by cooption or coercion of judges nor kickbacks or financial favours. Judicial independence and accountability are thus two sides of the same coin.

The Bar has stood with Justice Isa because of its conviction that this is a case where certain organs of the state are trying to oust an independent-minded judge in the garb of accountability and at the expense of judicial independence. After an extensive media trial of the judge and proceedings before a 10-member bench, the short order stunned everyone by accepting the argument that the reference was illegal and quashed it but simultaneously set up a fresh reference against the judge on pretty much the same basis i.e. spouse’s assets.

In Para 4, seven judges ordered a tax commissioner to issue notices to the wife and children of Justice Isa asking them to explain “the nature and source of funds” used for acquisition of UK properties purchased back in 2004 and 2013. The SC did three things here: (i) passed an adverse order against the wife and children of a judge in proceedings to which they weren’t party; (ii) arrogated powers of tax authorities under the Income Tax Ordinance; and (iii) vested jurisdiction in a tax commissioner over the wife and children in disregard of provisions of law.

The next jurisprudence innovation is in Para 9. This directs FBR to present a report on the tax proceedings (required to be completed within 75 days) ordered by the SC against Justice Isa’s wife and children to Registrar SC, who would then submit it to CJP, who would in turn lay it before the SJC “for such perusal, consideration, action, order or proceedings, if any, as the Council may determine.” So here SC requires details of proprietary tax proceedings and orders against three private citizens holding no public office, to be presented to the CJP and SJC for action.

The attention to detail in this short order is breathtaking. SC has taken care of all possible contingencies. It sets a path to SJC of the FBR order and report is to be readied within 75 days. But leaves nothing to chance and holds that if no report is ready within 100 days Chairman FBR shall explain himself. And even if no report is forthcoming with such explanation the CJP will still convene the SJC to consider the matter suo moto. But what if FBR were to give Mrs. Isa and her children a clean chit? Why should the SJC convene and what will it discuss, the order doesn’t say.

SC was asked to decide whether the reference against Justice Isa was illegal. It said yes. But in doing so it also generated another complaint against the same judge in a round about way: by ordering FBR to proceed against the judge’s wife and children and then ordering the SJC to proceed against the judge based on FBR’s report in relation to his wife and children.

This order is hugely problematic on a textual and legal plane. Article 10A is a constitutional guarantee for due process. Our courts emphasize day in and day out that no one shall be condemned unheard. But here we find SC condemning a judge’s family by forcing FBR to proceed against them even when FBR chose not to do so of its own volition.

Article 209 vests in SJC the power to investigate conduct of judges not their wives or children. But SC has ordered that FBR’s order against a judge’s wife and children be laid before SJC. Further, either the President can force SJC into action or SJC can act on its own motion to inquire into a judge’s conduct. Here SC is ordering SJC to consider if a judge should be made vicariously liable for his family’s conduct, should FBR dig something up on them.

The order is also indefensible on grounds of equity. Many have argued that in the post-Panama age politicos have borne the brunt of heightened accountability. Now that a judge has been put in the dock, do these SC judges believe they mustn’t hesitate in going all the way in a balancing act to prove to the mob eager to witness a kill that the SC is fair and stands for across-the-board accountability and so must sacrifice one of its own? But should it please the mob in the name of equity or even-handedness in complete disregard of the law?

Dr Aharon Barack, chief justice of Israel, explained the allure of populism and the need to shun it in ‘Judges in a Democracy’: “‘public confidence’ runs the risk of being misunderstood. The need to ensure public confidence does not mean the need to ensure popularity. Public confidence does not mean following popular trends or public opinion polls... Public confidence does not mean pleasing the public; public confidence does not mean ruling contrary to the law or contrary to the judge’s conscience to bring about a result that the public desires.”

So if a defence for the order can neither be found in black letter law nor equity, is there another explanation? There might be. While the entire order is hardly defensible, its drift on the whole could be, if it is rooted in public morality. Our judiciary has been averse to accountability by other pillars of state, whether in accepting parliament’s vibrant role in judicial appointments or submitting itself to public audits. There has been much criticism around its lack of accountability since the lawyers’ movement. Is SC finally trying to atone for its stunning silence?

Under Article 184(3), SC can only adjudicate matters of public interest involving fundamental rights, and can only pass orders that a High Court can pass under Article 199. While SC can’t legislate, we often see it exercise soft discretion to fill vacuum in law through its orders and directions. In Justice Isa’s case SC could only have passed directions against his wife and children, if it were to hold as a matter of law that (i) financial matters of all judge, their wives and children are a matter of public importance, and (ii) public faith in judicial probity requires all judges to publicly account for financial matters involving themself and their families.

Can it be that in the absence of a law like the Election Act that requires candidates for parliament to disclose assets belonging to themselves and their spouses, SC is embracing a higher standard of financial disclosure for judges and their families in exercise of its judicial power and offering judges for accountability in full public view? Obviously such order can’t be limited to Justice Isa alone. It will only hold if the judge and his family are being treated at par as part of a class of public office holders that includes all superior court judges and their families.

Article I of Judge’s Code of Conduct says: “On equiponderance stand the heaven and the earth. By equiponderance oppression, meaning unjust and unequal burdens, is removed. The Judge’s task is to ensure that such equality should prevail in all things.” The judges who offered up Justice Isa’s family for special scrutiny by FBR have sworn an oath to abide by this Code. Would anyone dare criticize their order if they led by example and while ordering a judge’s family to account for its assets, voluntarily released details of their own?

The writer was part of part of the petitioner’s legal team in this case