ISLAMABAD: Justice Yahya Afridi of the Supreme Court in his separate note declared challenging of the presidential reference by Justice Qazi Faez Isa not maintainable, saying the fundamental rights of a sitting judge would remain eclipsed so far as their enforcement was not in consonance with the terms of his oath of office.

In his dissenting note on some aspects of the majority judgment, Justice Afridi explained that once a person takes an oath under the Constitution, he by his conduct subjects all rights and privileges available to him under the Constitution and the law which may be contrary to or not in consonance with the behaviour expected of a sitting judge as prescribed under the code of conduct.

In the June 19 short order, Justice Afridi had dismissed the petition moved by Justice Isa but endorsed the quashment of the reference by disposing of other petitions moved by a number of bar councils and bar associations.

However, Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi had not agreed with the sending of the matter to the Federal Board of Revenue (FBR).

Justice Afridi declared the petition of Justice Isa not maintainable, adding it starkly lacks one of the essential conditions - enforcement of fundamental rights - for the Supreme Court to invoke its original jurisdiction under Article 184(3) of the Constitution.

Justice Yahya Afridi in his dissenting note observes that fundamental rights of a sitting judge would remain eclipsed so far as their enforcement is not in consonance with terms of oath

“More so, when the positive exercise of this jurisdiction by the apex court would in effect thaw the process of accountability of one holding a public office, be it a judge of the Supreme Court. Accordingly, the petition being bereft of essential constitutional requirements is non-maintainable,” Justice Afridi observed, adding admittedly there was no absolute bar on a sitting judge to resort to litigation.

But possible efforts should be made by judges to avoid litigation and resorting to the same should only be made in dire need that too as a last inevitable option.

And in case a sitting judge having no other possible alternative enters into litigation, he has to tread very carefully and remain ‘cautious and forbearing’ to ensure that his actions do not infringe upon the respect and dignity attributable to the esteemed office of the judge.

Seeking to enforce the fundamental rights to challenge the very charges against him to be ultra vires and that too without withstanding the prescribed inquiry would negate the very spirit of the oath taken by the petitioning judge.

He said any directions by the Supreme Court setting steps for the Supreme Judicial Council (SJC) to follow and that too without hearing the counsel for the parties on the challenge made on the jurisdiction and bona fide of the council would be premature and offend the principle of natural justice.

On information against the judge obtained and disclosed unlawfully, Justice Afridi remarked that if admitted it would fall within the mischief of “information from any source” under Article 209(5) of the Constitution.

“Thus it would remain the discretion of SJC to decide whether based on the admitted information it would suo motu proceed against the sitting judge or otherwise. Any finding by this court on the probative value of the information or any direction to SJC to act in a particular manner, and that too at this stage, would not only be premature but also amount to usurping the constitutional domain of SJC.”

About the complaint by journalist Abdul Waheed Dogar, Justice Afridi observed that the foreign property highlighted in the complaint had been admitted by Justice Isa to be owned by his wife, Ms Sarina Isa. Therefore, any negative aspersions against Mr Dogar, at least to the extent of the adjudication of the present petitions, were legally insignificant, if not entirely irrelevant.

On the legal sanction for establishing the Asset Recovery Unit (ARU), Justice Afridi observed that passing a definite finding on the legal status of ARU would be unnecessary, if not legally incorrect.

On confidentiality of the income tax returns, Justice Afridi said the income tax officials, who were the custodian of the information, were commanded under the law to guard the same and in case of any breach thereof, the offender was to face penal consequences under the Income Tax Ordinance (ITO).

“However, this confidentiality of information would in no way prevent the competent income tax officials to seek from the assessee, the source of funds for the acquisition of any assets and in case the competent income tax official was not satisfied with the explanation for the source of funds he can departmentally proceed against the assessee for non-declaration and mis-declaration of assets under the enabling provisions of ITO.”

Prima facie, keeping in view the chain of directions emanating from the law minister leading to the unlawful disclosures of confidential information by the income tax officials, all persons who were part of this, have exposed themselves to penal prosecution for commission of offences under Section 189 read with Section 199 and section 216 (1) of the ITO, he added.

Published in Dawn, October 24th, 2020