SC throws out presidential reference against Justice Qazi Faez Isa, terms it 'invalid'

Updated 20 Jun 2020

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Counsel for Justice Qazi Faez Isa said that the judge was forced to challenge the presidential reference to defend his and his wife's honour and the top court should declare the reference as invalid. — Photo courtesy SC website
Counsel for Justice Qazi Faez Isa said that the judge was forced to challenge the presidential reference to defend his and his wife's honour and the top court should declare the reference as invalid. — Photo courtesy SC website

The Supreme Court on Friday threw out the presidential reference against Justice Qazi Faez Isa, terming it “invalid”.

“[The reference] is declared to be of no legal effect whatsoever and stands quashed,” read the majority (9-1) short verdict on a petition filed by Justice Isa and others seeking the reference's dismissal.

Justice Yahya Afridi found the petition "non-maintainable".

The top court also ended any pending proceedings against the judge in the Supreme Judicial Council (SJC), which it said also meant withdrawal of a show cause notice issued to Justice Isa by the council in July last year for “writing letters to President Arif Alvi” after the presidential reference against him was filed.

Furthermore, seven of the 10 judges on the bench also ordered the Inland Revenue Department and the Federal Board of Revenue (FBR) to seek explanations from the judge's wife and children on the nature and source of funding for three properties in their names in the United Kingdom and submit a report to the SC registrar.

Other than the dissenting Justice Afridi, Justice Maqbool Baqar and Justice Mansoor Ali Shah opposed the majority decision of an FBR inquiry.

The verdict was announced by Justice Umar Ata Bandial, who was heading the 10-judge bench hearing the case.

The short order directed the Inland Revenue Commissioner to send a notice to the judge's wife and children within seven days, asking them for the aforesaid explanations about their properties in the UK.

The commissioner will complete the investigation within 60 days and issue an order within 15 days of the investigation’s conclusion. The FBR has been directed to submit a report to the SC registrar within seven days of the commissioner’s order.

The registrar will then present the report to the chairman of the SJC (the chief justice of Pakistan) who will decide when to present it in the council.

Munir A Malik, counsel for Justice Isa, while speaking to the media outside the SC said that "all of their arguments were accepted by the court including malafide intention, prematurity and  lack of evidence".

"The Assets Recovery Unit cannot be accepted as a legal department as it was not constituted on legal grounds," he added.

President of the Supreme Court Bar Association Hafiz Abdur Rehman Ansari in a statement "highly appreciated" the top court's verdict and commended it for "its courageous demonstration guarding its independence [and] thus upholding the prime objective of the rule of law and supremacy of the Constitution".

Vice chairman of the Pakistan Bar Council (PBC) Abid Saqi said that the SC verdict had "frustrated the nefarious and ill-motivated move of the government to subdue and pressurise the independent judiciary".

The PBC also announced that all bar members will observe Youm-e-Tashakkur (day of gratefulness) on June 22. They will also celebrate what the council termed a "landmark judgement and the victory of the cause of the rule of law, the constitutionalism and independence of the judiciary".

'President did not form independent opinion before filing reference'

The reference filed against Justice Isa — in line to become the chief justice on September 18, 2023, for 13 months — by the government in May last year alleged that he acquired three properties in London on lease in the name of his wife and children between 2011 and 2015, but did not disclose them in his wealth returns. Justice Isa contested the allegation, saying he is not a beneficial owner of the flats — neither directly nor indirectly.

Through his petition, Justice Isa pleaded before the Supreme Court that the powers that be wanted to remove him from his constitutional office by hook or by crook. President Arif Alvi, he claimed, did not form his own independent opinion before the filing of the reference against him.

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.

The petition also claimed that government agencies including the FIA secretly obtained information about the petitioner and his family 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.

Justice Isa also asked the apex court to declare that the ARU constituted by the government to investigate his family's properties was illegal and working without any legal effect and any of the actions taken by the unit with regard to the reference against the petitioner judge and his family were thereby illegal and of no legal effect.

Appearing in the court today, the government's counsel, Dr Farogh Naseem, who resigned as the federal law minister to appear before the court in this case, submitted a reply from the FBR about Mrs Isa’s complaint that she had disclosed properties in her tax returns for 2018-2019 but the FBR had still issued her a notice.

Justice Bandial who said the judge's wife had brought all documents pertaining to the properties on record and the government would verify them.

Munir Malik, counsel for Justice Isa, said he could "not understand" what the government's case was about. Referring to Naseem's argument about a similar case of a judge in Gibraltar, Malik said in that case the judge had associated himself with his wife's properties while Justice Isa had not done the same.

He argued that the government had come to the SJC instead of going to the FBR, adding that Justice Isa had "never interfered" in the tax body's workings. He said Justice Isa had been forced to challenge the presidential reference to defend his and his wife's honour and requested the court to declare the reference invalid.

Malik also demanded that the government's counsel submit receipts for searching the record of properties in a UK court, saying that this exercise would determine whether the ARU had searched for them or someone else had done it. He claimed that the ARU had only acted as a facilitator in the reference.

Justice Isa's counsel further claimed that the government brought in a reference against his client only because it wanted to remove the judge who had announced the verdict in the Faizabad sit-in case. "The court should not consider this petition as the case of an individual. Do we want a law that allows one institution to spy on another?" he questioned.

Justice Yahya Afridi then questioned Malik as to whether a judge's individual rights were more important than the oath he took.

He then asked the petitioner's counsel whether Justice Isa had violated his oath by appearing in the court to which Malik replied that that will be determined after it is decided whether the judge had appeared in the court for his own self or for the judiciary.

"Today, a reference has been filed against Justice Isa, tomorrow it can be filed against anybody," Malik said.

The counsel for the Supreme Court Bar Association Hamid Khan argued that Islam gave every individual the right to own property. Iftikhar Gilani, who was representing the Khyber Pakhtunkhwa Bar Council said 29 petitions had been filed by different bar councils and bar associations against the presidential reference.

"These are not Justice Isa's relatives. The government's reference has no basis and is against the freedom of judges," he argued.

Justice Bandial said the question was whether the reference should be completely dismissed. "This is a very important question [for the bench]. Bar councils and bar associations have full faith in the judiciary," he observed.

A day earlier, a teary-eyed Mrs Justice Qazi Faez Isa presented before the court the evidence of funds used to purchase the three offshore properties whose money trail is a key to the presidential reference filed against her husband.

"We are quite satisfied that you have the material in support of the source (of money) for the properties," observed Justice Bandial after the recording of her statement. "You have a strong answer to the slur caused by the allegations."