Against judicial pessimism.

THE illegal and mala fide presidential reference against Justice Faez Isa has been quashed by the Supreme Court (SC).

Surely, we should celebrate this victory. No, we are told, because this is actually an illusionary or pyrrhic victory as the persecution of Justice Faez Isastillcontinues through the Federal Board of Revenue (FBR), no action has been taken against the president and prime minister for this illegal and mala fide reference and the Assets Recovery Unit has not been held accountable for its illegal actions.

This kind of thinking is very dangerous because it engages in legal illusions and turns a victory for judicial independenceand constitutionalism into an illusionary defeat. It is an illusion to think that Justice Faez Isa`s case was a simple case for the Supreme Court to just show courage in protecting a good judge versus the evil state. Actually, this case involved three formidable challenges.

Firstly, how does one protect judges from persecution without compromising on accountability, i.e. the independence versus accountability challenge.

Secondly, how does one hold the state accountable for its illegal and mala fide actions against judges without provoking an inter-institutional crisis, i.e. the executive accountability versus interinstitutional crisis challenge. Thirdly, how does one provide justice to the persecuted judge without compromising the autonomy and effectiveness of the Supreme Judicial Council (SJC), an institution headed by the Chief Justice of Pakistan and other senior-most judges, i.e. the Supreme Court versus the Supreme Judicial Council challenge.

Only a short order In this age of instant information, peopleforget thatitis the standard practice of the courts to issue short orders and later on issue detailed reasoning. It is precisely for this reason that the Justice Faez Isa Supreme Court Order begins with the critical words: `For detailed reasons to be recorded later and subject to any orders made or directions given therein (if any)...`. This means that not only many tens of pages of detailed reasons explaining the meaning and basis of thisshortorderbutalsofurtherordersor directives (if any) are still to be issued by the Supreme Court in this case.

These detailed reasons or further orders/directives may contain the answers to the above criticisms, i.e. why the Supreme Court referred the matter to FBR? Whether the president and prime minister or their legal advisers or any other state institution have...