Reference quashed but judge not out of the woods yet

20 Jun 2020

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ISLAMABAD: Government’s counsel Dr Farogh Naseem (left) leaves the Supreme Court after the announcement of verdict in the presidential reference on Friday and (right) Munir A. Malik, counsel for Justice Qazi Faez Isa, speaking to reporters outside the SC building.—Tanveer Shahzad / White Star
ISLAMABAD: Government’s counsel Dr Farogh Naseem (left) leaves the Supreme Court after the announcement of verdict in the presidential reference on Friday and (right) Munir A. Malik, counsel for Justice Qazi Faez Isa, speaking to reporters outside the SC building.—Tanveer Shahzad / White Star

ISLAMABAD: The Supreme Court on Friday quashed the presidential reference against Justice Qazi Faez Isa and ordered the Federal Board of Revenue (FBR) to seek explanation from his family members on the nature and source of funding for the offshore properties in their names.

“The Order of the Court is that Reference No 1 of 2019 (against Justice Qazi Faez Isa) is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council (SJC) including the show-cause notice of July 17, 2019 stand abated,” announced Justice Umar Ata Bandial in a short order after closing the 41st hearing.

“Justice Isa stands vindicated and this is a win-win situation for him,” commented senior counsel Munir A. Malik soon after the short order the detail reasons of which will be issued later.

Justice Bandial, who was heading the full-court, commenced the pronouncement of the judgement by reciting the Quranic verses (Ayat 83 and 84 of Surah Shura) “O Allah Almighty please endow me with wisdom to make a righteous decision and grant me an honourable reputation amongst posterity”.

Justice Yahya Afridi dismissed Justice Isa’s petition but endorsed the quashment of the reference by disposing of other petitions moved by several bar councils and bar associations.

SC orders FBR to seek explanation from Justice Isa’s family about their properties

Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi did not agree with the sending of the matter to the FBR.

This is the second reference in the judicial history of Pakistan, as the 13-judge Supreme Court bench quashed the reference against former Chief Justice Iftikhar Mohammad Chaudhry in 2010 but without any condition, said a senior counsel requesting anonymity.

However, Friday’s judgement is conditional rather “Panama-JIT-II” where no clean chit was given as the FBR would conduct its inquiry and report back to the SJC, he said, adding that it would have been far better had Justice Isa not turned up to address the full court.

Senior counsel Azam Nazir Tarar also commented that the episode could not be called concluded finally since the reference though quashed had left many question marks as the SJC could still initiate its proceedings against the judge suo motu if the FBR reported back with “unsatisfactory findings”.

The bar councils and bar associations would jealously follow the upcoming events in a bid to guard the interest of justice and the independence of the judicial till the matter came to a logical end, he said.

Meanwhile, Pakistan Bar Council (PBC) Vice Chairman Abid Saqib announced that the members of the bar throughout Pakistan would celebrate the victory pursuant to the landmark SC judgement. He also announced that “Yaum-i-Tashakur” would be observed on Monday (June 22) by holding meetings in their respective bar rooms.

The quashment has frustrated the nefarious and ill-motivated move of the government to subdue and pressurise the independent judiciary of Pakistan, the PBC vice chairman.

Supreme Court Bar Association (SCBA) President Syed Qalb-i-Hassan described the judgement historic and commended the apex court for its courageous demonstration for guarding its independence thus upholding the prime objective of the rule of law and supremacy of the constitution.

Senior counsel Faisal Siddiqui said: “The majority judgement today balances judicial independence and judicial accountability, both being essential for a free judiciary.”

Meanwhile, seven judges namely Justice Umar Ata Bandial, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Mohammad Amin Ahmed in a majority judgement ordered that within seven days of the verdict, the concerned Commissioner of Inland Revenue would issue appropriate notices under the Income Tax Ordinance (ITO) 2001 to the wife and children of Justice Isa to offer an explanation about the nature and source of the funds, separately for each property namely No 40, Oakdale Road, London E11 4DL; No. 90, Adelaide Road, London E10 5NW; and No. 50, Coniston Court, Kendal Street, London W2 2AN.

However, the notices issued or proceedings taken under the ITO earlier in respect of the properties stood terminated, the order said, adding fresh notices would be served at the official residence of Justice Isa at Islamabad through courier service.

According to the decision, the wife and children of Justice Isa will furnish their replies to the notices along with evidence and if any of them is outside, it will be their responsibility to timely file the response since the proceedings before the commissioner will not be adjourned or delayed for the reason of non-availability in Pakistan. On receipt of their replies, the commissioner will give them an opportunity of hearing and make an order in accordance with the ITO.

The proceedings would be concluded before the commissioner within 60 days of the date of receipt of the notices and the order would be issued within 75 days, the SC verdict stated, adding that no adjournment or extension would be given.

Within seven days of the issuance of the order by the commissioner, the FBR chairman would furnish a report to the SJC through its Secretary (i.e. the Registrar of the Supreme Court) about the proceedings. The secretary would place such report before SJC chairman (Chief Justice of Pakistan) who would have the report laid before SJC for consideration, action or proceedings, if any, in relation to Justice Isa.

According to the verdict, the SJC may initiate proceedings under Article 209 of the Constitution under its suo motu jurisdiction. If within 100 days of the SC judgement, no report was received by the SJC secretary from the FBR, he could seek an explanation from the FBR why no report had been sent. And if the reply was received without the report or no reply was received, the SJC could consider proceedings, if any.

For the removal of any doubts, the order clarifies that any of the proceedings under the ITO and before the SJC are distinct and separate from each other. Accordingly, nothing contained in this order would affect or prejudice the rights of appeal of any of the respondents under the ITO, the judgement said, adding if the wife and children felt aggrieved by any order under the ITO, they could appeal which would be decided on the merit.

The consideration by the SJC would not be affected by the filing or pendency of any appeal under the ITO, but the council could issue any order regarding the appeals, the judgement said.

Meanwhile, the three minority judges held that all the petitions were maintainable but observed that one of the pivotal constitutional values was the independence of judiciary which should be fully secured.

The same constitution also ordains that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen. Therefore, it is reiterated that in our constitutional democracy, neither the petitioner judge, nor any other judge, or any individual or any institution, is above the law, they observed.

The doors of the constitutional forum, the SJC, were always open, either on its own motion or for anyone who had a genuine and a bona fide grievance, amenable to the jurisdiction of the council against a judge of the constitutional court, they observed.

At the same time, the judges said, it was equally important that a judge like any other citizen of Pakistan enjoyed the inalienable constitutional right to be treated in accordance with law and these fundamental values were to be protected at all cost in order to uphold the majesty and supremacy of the Constitution and to honour the people of Pakistan who had adopted and given to themselves this Constitution.

Published in Dawn, June 20th, 2020