ISLAMABAD: The Supreme Court (SC) said on Monday that prima facie three properties in London were owned by the wife of Justice Qazi Faez Isa but his expenditure was not in accordance with his earning. The SC was told on Monday that the nothing was mentioned to the president regarding any charge of money laundering against Justice Qazi Faez Isa.
The president without applying his independent opinion sent the reference to the Supreme Judicial Council (SJC). A 10-member full court of the apex court headed by Justice Umar Ata Bandial resumed hearing into the identical petitions, challenging the Presidential Reference filed against Justice Qazi Faez Isa for allegedly not disclosing foreign properties of his family members in wealth statement.
Other members of the full court are Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Muhammad Qazi Amin Ahmed.
Commencing his arguments, Babar Sattar, member of the legal team of Justice Qazi Faez Isa submitted before the court that nothing regarding charge of money laundering was put before the president against the petitioner. Justice Maqbool Baqir asked the counsel as to whether he said that the instant reference was not liable to be examined by the SJC.
Babar Sattar replied that had the president applied his independent mind, the reference would not have put before the SJC on the reports of Asset Recovery Unit (ARU) and Federal Investigation Agency (FIA).
He contended that Anti-Money Laundering Act 2010 is a special law that provides its own mechanism of gathering information undertaking investigation and prosecuting offences.
"In this case the competent authorities have exercised no jurisdiction under the Anti-Money Laundering Act, 2010”, Sattar submitted adding that there is also no material on record that might create the slightest suspicion that the petitioner might be involved in money laundering.
“Ok! but you are here to assist us on tax law”, Justice Umar Ata Bandial told Sattar. Justice Muneeb Akhtar recalled that lead counsel Munir A Malik had submitted as he was not an expert on tax matters hence Babar Sattar will argue in this regard.
"You have to assist us on tax matters instead of jumping to other pleas so remain in your framework”, Justice Muneeb told Sattar.
The counsel contended that Article 209 of the Constitution provides judges more protection than other citizens hence the petitioner has the right of fair trial as enshrined in the Constitution under Article 10-A.
Justice Munib Akhtar observed that Article 10-A does not apply on the Presidential Reference. Justice Mansoor Ali Shah observed that the fundamental right of a judge cannot fade while examining the facts.
Justice Umar Ata Bandial observed that the SJC consists of senior judges who have grip over the law adding that any judge appearing before the Council gets more respect than other forums. Babar Sattar contended that as per tax laws, no civil servant has so far been proceeded against therefore, it is the Supreme Judicial Council that is to examine as to whether the petitioner (judge) has committed any misconduct or not.
In the instant case, the learned counsel contended that no due process required under the law was adopted while the authorities concerned did not use its real obligation but relied on targeting the judge. Justice Muneeb Akhtar, however, observed that the reference was not only filed against the petitioner but also another judge.
Babar Sattar submitted that first, the reference relies on a chauvinistic concept of marriage where the wife is to be treated as nothing than a ward of the husband and thus always as a dependent and second a popular narrative of accountability weaved around the Panama case and an attempt to draw a parallel by throwing in terms such as expensive offshore property, money laundering, dependent wife and children etc and without the slightest regard for the difference in applicable law and the distinction in terms of the facts screaming out.
Justice Muneeb Akhtar observed that in the instant case one property relates to 2004 while two were mentioned in 2013 hence the court will look into three tax returns. Babar Sattar submitted that Justice Isa became the Chief Justice of Balochistan High Court on August 5, 2004 and then elevated to the Supreme Court as a judge on September 5, 2014.
“Do you want to say that upon elevating to Supreme Court, the conduct of the high court is wiped out,” Justice Muneeb Akhtar asked to which Babar Sattar replied in affirmative.
Sattar submitted that it is apparent on bare perusal of the reference that the only allegation against the petitioner is stated to be breach of section 116 of Income Tax Ordinance.
“No evidence was placed on record to establish that there has been money laundering or that the case against the petitioner is one of the assets beyond means”, the counsel contended. Similarly he submitted that no material has been produced to establish that the spouse of the petitioner is a dependent or that the children of the petitioner, who were adults at the time of purchase of the properties, had no financial means and were financially dependent on the petitioner.
Sattar further submitted that the show cause notice issued to the petitioner goes beyond the reference and alters the allegation against the petitioner.
“Do you want to say that the allegations which were not part of the reference were given in the show cause notice”, Justice Sajjad Ali Shah, another member of the bench asked the counsel. Sattar replied in affirmative.
The learned counsel submitted that reliance has wrongly been placed on the case of Imran Khan verses Nawaz Sharif (PLD 2017 SC-265) adding that in the said case, there was a requirement of filing a declaration on oath by those contesting elections under the Representation of People’s Act, 1976 (ROPA) and dealt with the issue of qualification and disqualification of members of Parliament under Article 62 and 63 of the Constitution.
“In the case of the petitioner, however, there is no identical obligation on the judge of the superior court under law mandating such disclosure or provision of money trail of properties owned by the judge’s spouse or children”, Sattar contended.
He submitted that the SJC in the instant case cannot go beyond the four corners of the Reference sent by the President alleging breach of section 116 of the Income Tax Ordinance by the petitioner and indulging in a roving inquiry seeking information from the petitioner in relation to the conduct and dealings of his non-dependent spouse and children.
Meanwhile, the court adjourned the hearing for today (Tuesday).
