• Overturns its majority verdict
• Entire FBR exercise rendered null and void
• Court accepts review petitions against presidential reference verdict
ISLAMABAD: In a dramatic twist, the Supreme Court by a majority of six to four overturned on Monday its June 19, 2020 majority judgement that required verification and subsequent findings by the tax authorities of three foreign properties in the name of the wife and children of Justice Qazi Faez Isa.
Consequently, the entire exercise conducted by the Federal Board of Revenue (FBR) was rendered null and void as the fresh order on a set of review petitions recalled and set aside the June 19 verdict that had quashed the presidential reference against Justice Faez Isa, but authorised the FBR to evaluate and later impose tax liability against Mrs Isa for possessing three properties in United Kingdom. Soon after the judgement, media persons rushed to Justice Isa who himself had argued his case. After Allah Almighty, Justice Isa thanked journalists for the success and their unflinching support.
The short order was announced by Justice Umar Ata Bandial following over 90 minutes of deliberations among the brother judges on the 10-judge SC bench and after two-hour long proceedings.
The order clarified that all the subsequent proceedings, actions, orders information and reports in pursuance of the directives issued through the June 19 verdict as well as the detailed reasons of that short order were declared to be illegal and without any legal effect.
The apex court, which announced its order at 2.35pm, also made it clear that no forum, including the Supreme Judicial Council (SJC), would consider or peruse any report, or order or hold proceedings or actions, etc.
Justice Bandial, who presided over the bench, along with Justice Sajad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed, however, differed and dismissed the review petitions.
But Justice Yahya Afridi stuck to his earlier stance and allowed all review petitions except that of Justice Faez Isa.
As a result of the fresh order, paragraphs four to 11 in the June 19 short order and the subsequent Oct 23, 2020 detailed judgement were recalled. These paragraphs were challenged by the petitioners through the review petitions by dubbing them superfluous, contradictory, excessive and unlawful and thus liable to be deleted from the short order.
Justice Manzoor Malik and Justice Mazhar Alam Miankhel, who were part of the majority judgement which referred the matter to the FBR for further investigation, changed their earlier view.
Justice Aminuddin Khan, who substituted Justice Faisal Arab after the latter’s retirement, supported the decision in favour of Justice Isa.
Khushdil Khan, vice chairman of the Pakistan Bar Council (PBC), which was a petitioner in the case, appreciated the judgement and said it would stop the onslaught of the executive against independent judges in future. “The Supreme Court has proved that the judiciary is independent,” he said in a statement, adding that the verdict would also strengthen the principle of supremacy of the Constitution, rule of law and independence of the judiciary.
PBC’s representative in the judicial commission of Pakistan Akhtar Hussain demanded an inquiry against those who were instrumental in the filing of the presidential reference against Justice Isa.
The Pakistan Federal Union of Journalists (PFUJ), also the petitioner, termed the judgement a victory of “justice” and “honesty” and defeat to the dictatorial and authoritarian mindset.
PFUJ president Shahzada Zulfiqar and secretary general Nasir Zaidi in a joint statement said the judgement was a milestone and that the executive and anti-judiciary forces would think twice of sending such faulty and fabricated reference against upright judges of the superior courts.
The PFUJ urged the civil society, legal fraternity and media bodies to get united for the rights of people and for safeguarding human and civil rights in the country. “PFUJ will always stand for the rights of the people of Pakistan, freedom of press and expression and supremacy of law and justice in the country,” the statement said.
The split June 19, 2020 short order with a majority of seven to three had ordered the Commissioner Inland Revenue to issue appropriate notices under the Income Tax Ordinance (ITO) 2001 to the wife and children of Justice Isa. The notice should seek explanation from them 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, it stated.
However, the notices issued or proceedings taken under the ITO earlier in respect of the properties were terminated as a result of which the FBR had to serve fresh notices at the official residence of Justice Isa at Islamabad through courier service.
The wife and children, under the judgement, had to furnish their replies to the notices along with evidence and on the receipt of the replies the commissioner was required to give an opportunity of hearing and make an order in accordance with the ITO.
Within seven days of the issuance of the order by the commissioner, the FBR chairman had to furnish a report to the SJC through its secretary (i.e. registrar of the Supreme Court) on the proceedings after which the secretary had to place the report before SJC chairman. The SJC could initiate proceedings under Article 209 of the Constitution under its suo motu jurisdiction, the judgement had stated.
During the hearing on Monday, Justice Isa protested in the strongest term and accused Justice Bandial of violating the code of conduct and becoming a complainant against him by introducing post-review documents that concerned the FBR report before the bench hearing review cases.
Likewise, his wife Sarina Isa also asked Justice Bandial and Justice Muneeb Akhtar to disclose their assets like her husband if they really believed in the accountability of judges.
A visibly disturbed Justice Bandial repeatedly consulted Justice Maqbool Baqar during the hearing.
Justice Yahya Afridi also observed that by referring to the FBR documents, the Supreme Court itself had become a complainant against Justice Isa.
At the end, Justice Isa said no judge of the Supreme Court should ever go through the ordeal which he and his family endured.
Justice Bandial observed that accountability of judges was essential to retain the confidence of the people in the institution of judiciary.
Published in Dawn, April 27th, 2021