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October 24, 2020

Presidential reference against Justice Faez Isa: Govt errors amounted to wanton disregard of law, says Supreme Court

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October 24, 2020

ISLAMABAD: The judicial reference filed against the Supreme Court Justice Qazi Faez Isa was filed in complete disregard to the law, the Supreme Court of Pakistan noted in its detailed judgement on the matter released on Friday.

However, though the apex court found glaring lapses and procedural irregularities in the filing of the reference, it ruled that there was no ill intent behind the filing of the reference on the part of the president and prime minister.

The 224-page detailed judgment, authored by Justice Umar Ata Bandial, which begins with Surah An Nisa, Verse 135, found multiple defects in the reference while two judges Justice Faisal Arab and Justice Yahya Afridi came up with their separate notes.

The judgement was signed by Justice Umar Ata Bandial, Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan, Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed.

i. The president and the PM never gave the needed authorisation to investigate the affairs of Justice Isa. Instead the authorisation of the law minister was obtained;

ii. No notice was issued to Mrs. Isa as required under Section 116(1) of the Income Tax Ordinance prior to the filing of the reference;

iii. It was assumed that Justice Isa was to be under the obligation to declare the assets of his independent wife and adult children on the basis of an unsettled and disputed interpretation of Section 116(1)(b) of the Ordinance;

iv. There was no evidence or a previous offence recorded against Justice Isa to support the allegation of money laundering brought against him;

v. Likewise, there was no evidence that Justice Isa had violated the Foreign Exchange Regulation Act and even the relevant provisions from the said law were not specified in the reference;

vi. The president received wrong advice from the attorney general and the law minister, described as “the chief architects of the reference”, on the strengths and weaknesses of the reference;

vii. The president failed to get considered, fair and objective advice from a third party on the questions of law noted in the reference;

viii. The president failed to notice the various legal and procedural defects in the reference;

ix. The president did not form a considered opinion under Article 209(5) of the Constitution;

x. As there was no valid authorisation for an investigation against Justice Isa, the government’s Assets Recovery Unit illegally accessed the tax records of the petitioner and Mrs. Isa; and

xi. Firdous Ashiq Awan, who was then the information minister, had made contemptuous remarks about

Justice Isa in public during a press conference.

On the basis of these findings, the Supreme Court delivered a blistering rebuke of the way the allegations against Justice Qazi Faez Isa had been handled.

“These illegal acts depict their (the government's) utter disregard of the law. Filing a reference under Article 209 of the Constitution that is signed by the president and which presents a charge sheet against a judge of the superior courts is a matter requiring utmost prudence and caution by its framers. However, in the present case, the actions of the respondents have violated not only the express provisions of the Constitution, the Rules of Business, the Income Tax Ordinance and Anti Money Laundering Act, but have also ignored the law which specifically set out certain safeguards to protect superior court judges from arbitrary actions of the executive,” the judgement states.

“In these circumstances, the errors committed by them in the preparation and framing of the reference cannot be termed as mere illegalities. Instead, in the context of Article 209, their (the government’s) errors amount to a wanton disregard of the law.

“As a result, although the preparation and framing of the reference against the petitioner is not patently motivated with malice in fact, the scale and degree of the illegalities are such that the reference is deemed to be tainted with mala fide in law. For this reason, the reference is hereby quashed,” it added.

"Consequently, the ongoing proceedings against the petitioner in the Supreme Judicial Council also stand abated," the judgement stated.

The Supreme Court ruled that no ill intention or malice could be attributed to the individuals responsible for a reference because the allegation that they had raised — that Justice Isa's wife and children owned properties in London — was in fact true.

"This is because it is now well established in other areas of the law that an allegation of malice in fact gets defeated if it is proved that a complaint levelled against a person is true. Accordingly, we hold that the allegations of malice in fact levelled by the petitioner against the respondents fail," it ruled on the matter.

"There is no evidence of falsity of the material collected or of misrepresented facts being alleged by the respondents. Their expedition has no doubt resulted in legal errors; however, this is still no ground for imputing malice in fact against the respondents," it added.

The court also explained that it had referred Justice Qazi Faez Isa's family to the Federal Board of Revenue (FBR) on two grounds: namely, to "establish that judges of the superior court are answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution" and, secondly, because Justice Isa himself had requested that the source of funds for the London properties and the allegation of money laundering must be put to his wife, who is an independent taxpayer.

"An independent judiciary is certainly a necessity for any civilised society governed by laws to prosper and thrive. But in utmost good faith neither judges nor the institution can retain the public trust when serious stigmas are cast on their integrity," it ruled.

"The institution (of the judiciary) cannot be perceived to be ignoring an unpleasant allegation of undeclared foreign assets of a family member of a judge," it added.

"Whilst the ownership of the London properties is not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad require explanation. Otherwise, an unexplained investment by the spouse of a judge of the superior courts, who is a holder of public office, compromises the integrity of the learned judge and ultimately the probity and credibility of the institution which he serves," it added.

While taking care to dispel the notion that any public office holder is immune to accountability proceedings, the court observed that unexplained foreign wealth is sure to invite scrutiny under relevant laws.

"The matter of undeclared and unexplained foreign wealth of public office holders bears a stigma in Pakistan that these assets have been acquired unlawfully (a stigma which applies with even greater force since the Panama leaks on 03.04.2016).

"Therefore, every public office holder including judges of the superior courts, officers of the armed forces, elected representatives and public servants are accountable under the law.

"Indeed, neither the institution of the judiciary nor the other institutions of Pakistan can tolerate a contrary perception. Consequently, all public office holders remain accountable under their applicable legislation on misconduct."

The Supreme Court also dismissed the argument put forward by Justice Isa that the government had committed a violation of his right to privacy by probing his family's London properties "because it is now obvious that in searching these records the respondents (the government) have not violated any law."

"Indeed, there is no law to violate since property records are open to the public (and have been since 03.12.1990). Consequently, no confidentiality attaches to such records. Clearly then, the acts of the officers of Assets Recovery Unit and the federal government in accessing the property records of the petitioner and his family cannot be classified as either invasion of privacy or covert surveillance," it ruled.

The court ruled that since the reference itself was so full of legal defects, the subsequent investigation by the ARU lost its legality and tax information pertaining to Justice Qazi Faez Isa was disclosed in contravention to the law.

"It is critical that the ‘investigation’ is duly sanctioned and is being carried out in accordance with law [...]. If this is not so, then clause (p) can have no application and the (tax) information cannot be disclosed.

"There was no proper investigation for the purposes of Article 209 when the ARU sought the tax information of the petitioner from the FBR. Consequently, the exception in Section 216(3)(p) of the ordinance is not applicable to the facts of the case," it noted.

On June 19, the court in a short order, had quashed the presidential reference filed against Justice Qazi Faez Isa and had halted the proceedings pending in the Supreme Judicial Council (SJC) against the judge as well as a show-cause notice issued to him on July 17, 2019.

According to the short order, the court referred the matter to the Federal Board of Revenue (FBR), directing to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.

The detailed verdict recalled that in CJP case (supra) this Court quashed the reference against the (then) Chief Justice Iftikhar Muhammad Chaudhry and brought the matter to an end without further action on the information contained in the reference against him.

The court noted that it is not at all difficult to understand why the larger bench in that case adopted such a course of action. It is because the reference filed against the (then) chief justice was established on record to be so manifestly motivated by the malice in fact of the military ruler at the time that the allegations against the former were rendered insignificant.

“However, in the present case no finding of malice in fact has been given,” said the detailed judgment, adding that it is true that the reference suffers from grave legal defects but the consequences of illegality of an impugned action are different from those following a finding of malice in fact.

The court held that it would now be appropriate to elaborate upon reasons for directing the FBR to commence tax proceedings against Mrs Isa and her children, notwithstanding the order to quash the reference against the petitioner.

“Our decision to take such a step was primarily based on two grounds: to establish that judges of the superior court are answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution; and to honour the petitioner’s plea that the allegation of absence of source of funds and money laundering must be first put to Mrs. Isa who is an independent taxpayer,” said the verdict.

Justice Yahya Afridi in his separate note observed that the present constitutional challenge made by the petitioners representing the entire lawyers' community of the country have been able to successfully establish that the worthy president grossly failed to exercise his discretion as mandated under the Constitution and, thus, the entire process built thereon leading to the filing of the reference was in violation of the law and the Constitution.

At the same time, the judge noted that it is intrinsically important to note that, the independence of our judiciary is not so fragile as to be effectively threatened or undermined by complaints. He said accountability of judges is and shall remain the essential lifeblood for a democratically vibrant society. “Indeed, indiscriminate, lawful and transparent accountability of judges would further bolster the independence of the judiciary, boast public trust, and thus, promote the rule of law in our country,” he noted.

“And to consider otherwise would be to accede to judicial autocracy,” Justice Yahya Afridi noted, adding that in the present case, once the Income Tax officials had information regarding the alleged undeclared assets of Mrs Sarina Isa, they despite having ample authority to legally proceed against her under the ordinance, opted to proceed unlawfully by disclosing confidential information to unauthorised persons.

“Thus, 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 at different rungs of the governmental hierarchy, who were part of this unlawful disclosure of confidential information, have exposed themselves to penal prosecution for commission of offences under Section 189 read with Section 199 and Section 216 (1) of the ordinance,” Justice Afridi held.

The judge further noted that apart from the strict statutory protection of the said information, one must appreciate that the law minister and the chairman ARU lacked the mandate to initiate an enquiry against a sitting judge of the Supreme Court, as the legal domain to do so rests solely with the Council, and none other.

“Even otherwise, the information relating to income tax returns of Mrs Sarina Isa would not fall within the scope of the purported enquiry of a "public servant" envisaged under Section 216(3)(p) of the Ordinance,” Justice Afridi noted.

The judge further noted that it was further vehemently asserted that the law minister was immune from criminal prosecution under Article 248 of the Constitution. It is by now judicially settled that there is no protection extended to holders of constitutional office from prosecution for their illegal acts.

“Hence, no constitutional immunity from prosecution would be available to the law minister or any other federal minister for issuing directions to obtain legally confidential information, and that too in the face of the said direction to an officer of the government to commit an offence under the ordinance,” Justice Afridi held.

Referring to Administrative and Penal Consequences for Passing on Confidential Information, Justice Yahya Afridi held that the direction of the law minister and the chairman ARU to solicit, obtain and receive, confidential information regarding the Income Tax returns of Justice Qazi Faez Isa and Mrs Sarina Isa, prima facie, exposes them to criminal prosecution for having committed an offence under the Section 199 read with sections 198 and 216(1) of the Ordinance.

“Similarly, the fact that the then chairman Federal Board of Revenue and the Income Tax officials having not refused the illegal directions of the law minister and chairman ARU, and passing on confidential information to them, prima facia, exposes them not only to departmental action but also to penal consequences under section 198 read with section 216(1) of the ordinance,” Justice Yahya Afridi held.

The judge directed the present chairman, FBR to ensure that the entire record of the present case is placed before the FBR to proceed under the law, against the law minister, the chairman ARU, the then chairman, FBR and all the concerned Income Tax officers qua their role in ordering to inquire into, solicit, disclose and receive confidential information relating to the income tax returns of Justice Faez Isa and Mrs Sarina Isa.

Keeping in view the sensitive nature of the proceedings, Justice Yahya Afridi further directed that the present chairman FBR is to further appraise the FBR to strictly follow the law in letter and spirit, without fear or favour, and most importantly, to independently apply its mind to the facts of the matter, lest the fundamental right to a fair trial under Article 10-A of the Constitution of the law minister, the chairman ARU, the then chairman FBR and the delinquent Income Tax officials is violated.

Referring to unlawful surveillance, Justice Yahya Afridi observed that it is universally recognised that unlawful surveillance of any person, much less a sitting judge of a constitutional court is to be seriously deprecated.

Likewise, Justice Faisal Arab in his 22-page separate note observed that the petitioner commands great respect in the legal fraternity however, when questions have been raised on the petitioner’s financial credibility then it becomes all the more necessary that he and his wife, who lives with him as a member of his household, should take this as an opportunity to scrub away the taint.

“Proving the allegation wrong by making a full disclosure with regard to source of acquisition of London properties located beyond the tax jurisdiction of this country would be the only appropriate response to meet the allegations and clear the doubts that may have arisen in the minds of the public,” Justice Faisal Arab noted.

“For any reason, if Article 209 (5) of the Constitution is made ineffective through judicial interference, it will die in the hearts and minds of the people for whom it was framed,” Justice Arab added.

The judge observed that after holding that the presidential reference was not maintainable in law, wrapping up these proceedings without adopting the course provided in the short order dated 19.06.2020 would not have resulted in genuine exoneration for the petitioner.

Justice Faisal Arab observed that every judge of the Judiciary, without any distinction, deserves the honour, dignity and respect which go with his office. When the integrity of a judge of the superior judiciary is called in question under Article 209 (5) of the Constitution, then not only his credibility but of the entire judicial institution is put at stake.

“The very commencement of the inquiry proceedings against a judge causes psychological pain and anguish that continues until his name gets finally cleared. The Judge noted adding that the agony may even continue for some time thereafter. Nonetheless, the sanctity of the mechanism provided for overseeing the conduct of judges of the superior judiciary has to be respected as nothing makes the judges of the superior judiciary immune from the process of accountability.

“Allegations of misconduct had been made against notable justices of superior judiciary around the world,” Justice Arab observed, adding that some got impeached and the others were cleared.

Justice Arab further observed that every Judge of the superior judiciary has to demonstrate due deference to the Supreme Judicial Council that has been entrusted with the constitutional responsibility to make inquiries into their conduct.

“This is to be done to assure that judges are performing their role as Guardians of the Constitution”, Justice Arab noted

Our correspondent adds: The PPP Friday demanded resignation of President Dr Arif Alvi saying that he has become controversial following the detailed judgment of the Supreme Court in the case of Justice Qazi Faiz Isa.

“The detailed judgement of Supreme Court of Pakistan in Justice Qazi Faiz Isa case has raised the question marks on the role of President Dr Arif Alvi so he should now resign,” said the PPP Information Secretary Dr Nafisa Shah.

“We demanded that the action should be taken all those who were involved in conspiracy to make judges controversial,” she demanded.

Dr Nafisa Shah said the president has overstepped from his discretionary powers by taking dictation. “According to judgement, the future decisions and possible reference will be doubtful,” she said, adding that after the detailed judgement, President Alvi lost justification to remain in office.