President, PM have no right to override constitution: Justice Isa

Updated October 17, 2019

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Supreme Court judge Justice Qazi Faez Isa alleges reference against him has been filed upon prime minister's advice. — SC website/File
Supreme Court judge Justice Qazi Faez Isa alleges reference against him has been filed upon prime minister's advice. — SC website/File

ISLAMABAD: Justice Qazi Faez Isa has pleaded before the Supreme Court that the president, the prime minister or the law minister enjoys no liberty to undermine the constitution and destroy the judiciary’s independence.

“A self-serving charge has been enacted and the petitioner (Justice Isa) and his family have been persecuted and their lives have been made a living hell,” read Justice Isa’s rejoinder to a statement filed by Attorney General Anwar Mansoor on his own behalf.

A 10-judge SC full court, seized with a set of petitions challenging the filing of a reference against Justice Isa of the Supreme Court, could not commence hearing of the case on Wednesday because of the sudden death of former Karachi police chief Shahid Hayat, who was a first cousin of Justice Mazhar Alam Khan Miankhel, a member of the bench.

Justice Isa alleged that the powers that be wanted to remove him from his constitutional office by hook or by crook. President Arif Alvi did not form his own independent opinion before the filing of the reference against the petitioner, Justice Isa added.

The prime minister, the law minister and the attorney general misinterpreted Section 116 (b) of the Income Tax Ordinance, 2001, and mistakenly applied it to his wife and children as the law was applicable only to a dependent wife and those children who were minor and dependent, Justice Isa said.

He wondered why the government had not made public the wealth statement of the prime minister in accordance with its interpretation of the ITO provision.

“Why the government, in the interest of transparency, is not disclosing the tax returns and wealth statements of the prime minister, particularly when it has made public my tax statement and that of my wife,” the judge alleged. “Why the double standards and why the lack of transparency.”

The reference is stated to have been filed upon the prime minister’s advice, the rejoinder said, alleging that a wrong advice was given intentionally for mala fide reasons and for ulterior motives for a purpose, which was to remove the petitioner (Justice Isa) from office.

The prime minister misconstrued Section 116(b) of the ITO and thus rendered advice contrary to his own understanding as he had never disclosed the properties of his wives and children in his wealth statements, the rejoinder said.

“His advice was therefore knowingly false and given only to target the petitioner,” it added.

The reference itself discloses that the government’s agencies, FIA among them, had provided help to secretly obtain information about the petitioner and his family. Subsequently, the petitioner and his family’s data and documents maintained by Nadra, a statutory entity, were illegally accessed.

“The petitioner and his family have been treated as common criminals,” the rejoinder said.

Such covert action was in clear transgression of Articles 4 and 14 of the constitution since the petitioner and his family were neither taken into confidence over these investigations nor were they provided a single opportunity to respond to any purported discrepancy. This omission on the government’s part violated the due process stipulated by Article 10A of the constitution, according to the rejoinder.

The reference revealed, the rejoinder recalled, that an assistant commissioner at Islamabad was assigned to investigate the petitioner and his wife from the confines of his Islamabad office. The official unilaterally formed an opinion within one working day and did not bother to even issue a notice to the petitioner and his wife, the rejoinder regretted.

In a separate rejoinder to the statement of the Supreme Judicial Council’s secretary, Justice Isa said that by showing an unusual haste in admitting the reference, the SJC had deprived the petitioner of his right to a fair trial and due process.

The secretary put up the reference before the SJC at a time when Justice Isa was on a sanctioned leave to assist his wife in taking care of her ailing father, the rejoinder concluded.

Published in Dawn, October 17th, 2019