ISLAMABAD: Mohammad Asif Reki, the Quetta Bar Association (QBA) president, moved a petition before the Supreme Court on Monday contending that the Supreme Judicial Council (SJC) had neither “legal authority nor capacity nor capability” to adjudicate upon complex laws relating to income tax.

In a challenge to the filing of a presidential reference against a sitting Supreme Court judge, Justice Qazi Faez Isa, and a Sindh High Court judge, Justice K.K. Agha, the petitioner said the resolution of complex questions of income tax laws should be left to be decided through due process of law by authorised officials of the income tax establishment.

“The SJC cannot enter upon such questions and thus the very basis of the presidential reference against the respondent judges was legally misconceived and not maintainable,” the petition argued.

Already five similar petitions have been filed in the Supreme Court, the first one being brought by Justice Isa himself. Two petitions have been filed by the Supreme Court Bar Association, the Pakistan Bar Council, while the fifth, a joint petition, has been filed by jurist Abid Hassan Minto and rights activist I.A. Rehman.

The QBA petition contended that serious questions of income tax law were involved in the reference against the two judges. One of them, according to the petitioner, was whether a person was obliged to file the assets of a spouse in his or her own wealth statement, particularly when the spouse was an income tax filer and had income-generating assets and properties.

Such complex questions of income tax laws ought to have been resolved within the hierarchy of income tax department by providing the respondent judges the right to defend themselves, the petition argued. “Mere allegations in the reference cannot be deemed to have been proven and, therefore, the same cannot form a basis for proceedings of misconduct against the judges, it added.

The petition emphasised that the independence of judges must be protected not only from any possible encroachment from the executive but also by their peers and seniors, including members of the SJC.

Before initiating proceedings on the references, the SJC must objectively satisfy itself that any complaint or information before it successfully makes out an ostensible-case of misconduct before the issuance of show cause notices to the judges.

Mohammad Asif Reki, the Quetta Bar Association president, claimed that no such “objective satisfaction” existed in the two references.

He stressed that the Code of Conduct cannot be interpreted in a manner to completely curtail the rights of a judge under Articles 19 and 19A of the Constitution and a balance must be drawn keeping in view modern trends and global practices.

The petition contended that a judge and his family were equally entitled to due process of law under Article 10A of the Constitution, including the benefit of the adjudication process prescribed under tax laws. As such, no reference was preferable until it had been concluded and a finding, if any, made against the respondent judge.

Moreover, the “selective leaking” of the contents of a presidential reference against a judge by the referring authorities or his subordinates was demonstrative of malice and rendered the same liable to be quashed, the petition pleaded.

The petition also argued that neither the attorney general nor the SJC possessed any power to enlarge the scope of an inquiry being carried out since a judge was not bound by rules applicable to the government servants regarding official communication.

The petition alleged that the reference against Justice Isa was primarily motivated by the judgement in the Faizabad dharna (sit-in) case (November 2017) as it had angered the ruling coalition as well as “visible and invisible branches of the government”.

Published in Dawn, September 3rd, 2019