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Pakistan

June 19, 2020

Supreme Court quashes presidential reference against Justice Faez Isa

Pakistan

Fri, Jun 19, 2020

Justice Qazi Faez Isa. File photo

ISLAMABAD: A presidential reference filed against Supreme Court judge, Justice Qazi Faez Isa, over alleged failure to disclose properties in London was quashed by the apex court on Friday.

The reference "is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council against the Petitioner in CP 17/2019 (including the show-cause notice dated 17.07.2019 issued to him) stand abated", the court's short order read.

The apex court's 10-member, larger bench — headed by Justice Umar Ata Bandial and comprising Justices Maqbool Baqar, Manzoor Ahmad Malik, Faisal Arab, Mazhar Alam Khan Miankhel, Munib Akhtar, Sajjad Ali Shah, Syed Mansoor Ali Shah, Yahya Afridi, and Qazi Muhammad Amin Ahmed — heard the case, reserving the verdict before it was announced after 4pm.

The case was wrapped up after Justice Isa's spouse provided the money trail pertaining to her foreign properties and the Federal Board of Revenue (FBR) provided its input on the matter.

The Supreme Judicial Council (SJC), wherein the reference was filed, had earlier initiated proceedings against Justice Isa on allegations that he had purchased three properties in London in the name of his wife and children between 2011 and 2015 but did not allegedly disclose them in wealth returns declared in Pakistan.

In his petition challenging the reference, Justice Isa had requested the apex court declare that the government's Asset Recovery Unit (ARU) — tasked to look into the properties — had no legal standing and, therefore, its actions with regard to the reference against him and his family were illegal.


At a glance:

  • Justice Afridi the sole judge to dissent from verdict
  • All information collected by authorities on London properties declared null and void
  • Seven of 10 judges on bench order FBR to review documents submitted by Justice Isa's wife
  • Income tax commissioner directed to send notices to Justice Isa's wife, children in London within seven days
  • Wife, children to respond with explanation of nature and sources of funds used to acquire properties
  • Proceedings not to be delayed over unavailability of a respondent; therefore, reply must be submitted timely
  • Proceedings to conclude within 60 days of receiving notices; order to be issued within 75 days by commissioner
  • FBR chairperson to submit entire record of proceedings to the SJC
  • If chairperson fails to submit report within 100 days of the court order, the SJC will demand explanation


Reference 'rendered baseless'

The petition had contended that no proper research was ever conducted and the property details gathered were simply the product of online surveillance.

Speaking to Geo News after the verdict was announced, former attorney general Irfan Qadir said mala fide intentions and misunderstanding were two different things.

"Mala fide intentions are made when there is substantial evidence but misunderstanding took place in this case because properties were not declared and some people were of the opinion that non-declaration of the wife’s assets was misconduct.

"After Justice Isa’s wife clarified in court that her husband had no link with the [London] properties, the reference was rendered baseless and which lead to its dismissal," said Qadir.


The short order

Justices Bandial, Malik, Arab, Miankhel, Shah, Akhtar, and Ahmed ruled that within seven days of the verdict, the "concerned Commissioner of Inland Revenue shall himself (and not some other officer) issue appropriate notices under the Income Tax Ordinance" to Justice Isa's wife and children.

The notice would direct them to "offer an explanation regarding the nature and source of the funds whereby the three properties in the United Kingdom that are in the names of the spouse and the children were acquired".

According to the court order, the respondents shall submit their replies and any "such material and record as is deemed appropriate".

"In case any of them is outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non-availability in Pakistan of such person," the order stated.

Upon receipt of the response, the Commissioner would "give an opportunity of hearing to the respondents in person or through an authorized representative/counsel".

"The proceedings shall be concluded before the Commissioner within 60 days of the date of receipt of the notices as aforesaid, and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given," it added.

Subsequently, the FBR chairperson shall submit a report duly signed by him to the SJC regarding the proceedings, ensuring that the entire record of the proceedings was appended.

"If, within 100 days from the date of this Order, no report as aforesaid is received by the Secretary from the Chairman, FBR, he shall inform the Chairman of the Council accordingly and shall, if so directed by him, write to the Chairman, FBR requiring an explanation as to why the report has not been received," the order added.

‘Satisfied’

Reacting to the apex court order, Special Assistant to Prime Minister on Accountability Mirza Shahzad Akbar said the government is satisfied with the short order and believed that the SJC is the proper forum to deal with the issues related to the judges.

On the occasion, Federal Information Minister Shibli Faraz said that this is a sensitive matter and they will not take any questions on it after the briefing.

“When the order was issued, an environment was created that this was someone's victory. But I want to make it clear that the government has the highest regards for the judges and the judiciary,” SAPM Akbar said.

“It was also said that the court has declared the Asset Recovery Unit as illegal but I couldn’t find any reference to this in the order.”

He said, for the last 13 months a lot has been said and written about the matter but the government never made any comment in this regard.

On sending the matter to FBR, Akbar said that the federal government had already agreed to the proposal given by the Supreme Court but the petitioner rejected it.

“PTI, Prime Minister Imran Khan and I as an advocate strongly believe in the independence of the judiciary.”

Opposition demands resignation of PM Imran

Meanwhile, the opposition parties in a joint statement welcomed the SC verdict and demanded the president and the prime minister resign from their posts for filing a reference based on mala fide intentions.

“President Arif Alvi, Prime Minister [Imran Khan] should resign on filing an illegal and unconstitutional reference against the judge of the Supreme Court.”

The statement was issued by PPP, PML-N, ANP, JUI-F, Jamat-e-Islami, Qaumi Watan Party and National Party.

“The truth about the ARU has come out and it should be shut down in the light of the SC order.”

“The government tried to malign the judiciary by filing a reference based on mala fide intentions against the judge,” it said, adding “this was an attempt to pressurize the judiciary.”

'The wrong bus'

The petitioner's lawyer, Munir A Malik, concluded his arguments in court by saying the federation "got on the wrong bus" in the case and urged for the dismissal of the reference against the judge.

Malik said a website had been used to search for properties in London. He told the court that if one wanted to search properties in London, they had to pay for the privilege.

He said the website sends a payment receipt to the relevant person who uses it to search for properties via email. He said British-Pakistani lawyer Zia ul Mustafa — who had searched for Justice Isa's alleged assets — had received three copies of the high commission's verified properties.

"Copies of politicians' properties searched were attached as well [in documents submitted]," he said. "If the government provides receipts as well then it will be revealed as to who searched for the properties."

Malik explained that if the ARU had conducted a search for the properties, then it should provide receipts. It seemed as if the unit had only facilitated the search, he added.

"The government only wants to remove the author of the Faizabad dharna case," noted Malik.

Justice Isa's wife submits money trail

Zarina Montserrat Khoso Carrera, the wife of Justice Qazi Faez Isa, had on Thursday given the money trail for purchasing three properties in UK, saying £700,000 were transferred from her personal account through a private bank in Karachi.

The 10-member full court headed by Justice Bandial had resumed the hearing in a set of petitions challenging the presidential reference filed against Justice Isa for allegedly not disclosing his foreign properties in his wealth returns.

Justice Isa's spouse had recorded her statement via video link before the court and submitted that details pertaining to her accounts were available with the State Bank of Pakistan (SBP).

The court, while expressing satisfaction over her statement, had asked her that in order to examine the matter on merit, she would have to approach the FBR or SJC and that a decision in that regard would be given by the tax authorities.

Justice Isa had informed the Supreme Court the other day that his wife was willing to explain before the apex court through video link about the three properties acquired in the UK.

Recording her statement, the judge's wife had expressed gratitude to the apex court for allowing her the opportunity to explain.

"I am very much nervous as this is my first experience before the court, but I will try my best to follow your instructions," Zarina had said, adding that it has been a critical time for her as her father was near to death these day.

Change in name and solicitor's advice

The judge's wife had clarified that she was a Spanish citizen and that she had used her passport to purchase the properties in London.

She had added that when her husband was a lawyer, she would get a five-year visa. However, the Pakistani authorities had issued a one-year visa after 2018 only to create hurdles.

Justice Isa's wife had explained that since she was born in Spain and her father's and mother's names, respectively, were Khoso and Carrera, her name on her birth certificate and passport is Zarina Carrera Khoso.

After she got married to Justice Isa back in 1983, however, the Pakistani government registered her name on her CNIC as Zarina Isa.

She had also showed her birth certificate and the old national identity card (NIC), saying she did not know that she would buy properties in London after 21 years of marriage.

She had submitted that she obtained her computerised identity card in the year 2003 and her name remained the same, adding that at that time her husband was not a judge. She was entitled to Spanish passport as her mother was Spanish and, therefore, she had a Spanish passport, she had added.

Justice Isa's wife had underscored that when her visa expired, she applied for a new one, adding that we she received it, her husband was not a judge but a lawyer. "So the allegation that I used the office of my husband for acquiring the visa was baseless," she had contended.

Properties and tax payments

She had bought the first property in the UK in 2004 and that she was employed at an American school in Karachi, she had explained. At that time, her solicitor Rehan Naqvi used to deal with her tax matters.

In her statement, the judge's wife had said her tax returns were filed after advice from Naqvi and that she owned a house in Clifton, as well as a plot in Shah Latif Town. She has also received agricultural land from her father, which is now in her name.

She had said she had agricultural lands in Jaccobabad, Sindh, and Dera Murad Jamali, Balochistan, while her father used to look after the land and that the government was well aware of all that.

Justice Isa's spouse showed the court the certificate issued by the tax authorities as she was filing her tax returns. She had underlined that when her tax record was transferred from Karachi to Islamabad, she asked the FBR in that regard; however, she claimed that the FBR had not responded to her request.

She had noted that her solicitor had advised her to open foreign account, which she did, and that she transferred the money abroad to purchase the properties through it. She had shown the court the record of her foreign currency account, saying she had to face great difficulties in seeking its details as the bank did not maintain 10-year-old records.

She had bought one property for £236,000, adding that she transferred £700,000 through a private bank to purchase the properties. "All documents which I have shown are genuine and authentic and the London Bank Account is also in my name," Zarina had added.

She had mentioned that another property was purchased for £245,000 in 2013 and that her son lived in that flat. Another property — which was in her and her daughter’s names — was purchased for £270,000. She was now filing tax returns both in the UK and Pakistan and that she had already filed tax returns of London properties in 2018, she had added.

Two other forums

Justice Bandial had told Zarina that they had no jurisdiction to hear the matter on merit but expressed satisfaction over her statement. He explained to her that she had two relevant forums available to her — the FBR and the SJC.

The judge had advised her to present her all documentary proofs to those forums as those were competent to decide her case.

"We felt that you have sufficient documents to present and I am sure that you will be heard properly; therefore, I wish you present these documents before the relevant forums,” Justice Bandial had told her.

To which, she had replied: "Why I was not asked earlier and I waited for 13 months while my son was subjected to harassment in London."

She had added that she was not asking for any privilege but for treatment as an ordinary citizen in Pakistan.

Justice Bandial had responded by saying she would be treated with respect and dignity and that she was a brave lady. He had said he hoped that she would be able to address her matter effectively.

"I must tell you one thing, we, as judges, are answerable for our actions in private and public life; therefore, we are much more accountable than other people, as we are holding other people accountable," he had told Justice Isa's wife.

"This not the trial of your husband and yours as well, but the trial of our institution," Justice Bandial had added.

Accountability in Pakistan

Justice Baqar had remarked that what was going on in Pakistan in the name of accountability would also be looked into. He had said the destruction of institutions was underway in the country in the name of accountability and they would write in the verdict on it as well.

When Justice Baqar asked if the SJC could review the president's performance, Barrister Farogh Naseem — the federal government's lawyer — said the council had the authority to review anyone’s performance.

Later, the court had directed Naseem to submit before in sealed envelop Zarina's tax returns record from 2018.

Justice Bandial had informed the barrister that Justice Isa's wife had also complained about the FBR's attitude, to which Naseem had submitted that if the complaint was true, it could be directly lodged with the prime minister.

Naseem had submitted before the court that Additional Attorney General Chaudhry Aamir Rehman, Khalid Ranjha, Irfan Qadir, and Sohail Mahmood — who were to represent president, prime minister, as well as other respondents — have adopted his arguments. Therefore, they would not argue before the court.

At this, the court adjourned Friday's hearing.