ISLAMABAD: Justice Maqbool Baqar of the Supreme Court on Wednesday wondered what caused the federal government to file the presidential reference against Justice Qazi Faez Isa.

And recalling how a perception existed that a particular decision [dharna or sit-in judgement] offended certain quarters, Justice Baqar observed that these quarters were not happy and even sought removal of the judge in the review petition they had filed against the verdict and that this judgement led the entire government and the Assets Recovery Unit (ARU) to start collecting information for filing the reference without identifying violation of any code of conduct by the judge.

Justice Baqar is a member of the 10-judge full court hearing a set of petitions challenging the filing of the presidential reference against Justice Faez Isa, a judge of the Supreme Court.

Justice Baqar recalled that it had never been alleged that the money utilised for acquiring three properties in London was ill-gotten or that the wife and children of the judge were dependent.

Says certain quarters not happy with judgement in sit-in case

Government’s counsel and former law minister Dr Farogh Naseem, however, contended that money laundering was a serious offence and that the judge should disclose the source through which the offshore properties were purchased.

“The judge is hiding behind the façade of the independence of the judiciary,” the counsel said, adding that Justice Isa had in his reply to a show-cause notice issued by the Supreme Judicial Council (SJC) stated everything except the source of the properties and at the same time also did not deny the existence of the properties.

Justice Umar Ata Bandial, who is heading the full court, observed that the tax background in the presidential reference suggested that the government seemed to be in agreement that the SC judge was not in compliance with the tax laws. But the code of conduct for the judges concerned more regarding the prestige of the institution of judiciary than the judge himself, he observed, adding that this institution was injured if there was an allegation of impropriety, dishonesty or corruption on the part of the judge or something that offended the conscience of people.

“We know we live in the glass house and are subject to the scrutiny of the people but we also know that Article 209 of the Constitution provides protection and defends the judges from the people who may want to embarrass a judge for trivial or minor wrongs,” Justice Bandial observed.

But here the judge in question had declared in his income tax returns of 2009 an income of Rs37 million and even in 2011 he had enough money since he was a successful lawyer back then. Therefore the government must have glaring instance of impropriety like the one “we have seen in the cases where people hid their properties behind the trust”, Justice Bandial observed, asking the counsel to show reason why this reference was filed.

Justice Bandial also asked Dr Nasim to show where it had been defined that the transfer of money through banking channels was illegal.

Justice Baqar observed that money laundering had its own regime under specific circumstances but perhaps all were missing here.

Justice Baqar also expressed his surprise over the fact that the federal government took the complaint by ‘honourable’ journalist Abdul Waheed Dogar so seriously without even finding his credentials as to which media house he belonged to, what kind of reports he had been filing and whether his application against the superior court judge contained the supporting material or not.

“Here, in this country, many things happen with the help of ‘invisible hands’,” Justice Baqar said, adding that the ARU must have taken some precaution before initiating inquiry since it was a sensitive matter and concerned the independence of the judiciary. He also inquired the status of the ARU.

Dr Nasim insisted that the journalist was determined not to disclose the source of his information, besides he (the counsel) also had three Supreme Court judgments in support suggesting that the complaint could be proceeded when information seemed to be correct.

Justice Yahya Afridi asked the counsel to furnish what steps the government had taken and what summaries had been moved during the period between May 10, and May 20, 2019 after receiving the complaint from Waheed Dogar.

Justice Syed Mansoor Ali Shah asked the counsel to furnish all the relevant documents showing steps taken by the government and also provide complete information on how many public complaints the ARU had initiated inquiries against the holders of public office.

Justice Bandial asked the counsel to assist the court in determining whether under Article 209(5) of the Constitution it was mandatory for the president to issue directive to the SJC to proceed against the judge and whether the president was required to hold inquiry against the judge first or simply send the reference to the council.

“Suppose a weak reference was sent to SJC with a mala fide motive, can the council hold inquiry suo motu or proceed ignoring the procedural defects in view of the sound information before it against the judge?” Justice Bandial asked.

Justice Baqar said the handicap of the SJC was that it could not look into the conduct of the president.

But Dr Nasim contended that there was no law barring the SJC not to question the conduct of the president or the law minister. Citing the show-cause notice issued by the SJC to Justice Isa, Dr Nasim insisted that the Supreme Court should dismiss the present petition since the council had taken cognisance of the issue before which the judge had also submitted by furnishing replies.

Justice Baqir asked about the fate of the proceedings initiated by the Federal Board of Revenue when it issued notice to the judge. He also asked whether two simultaneous but separate proceedings could be conducted one under the law and the other seemed to be without the sanction of the law.

Dr Nasim replied that the FBR authorities got scarred and, therefore, no tax proceedings reached conclusion.

Published in Dawn, June 4th, 2020