Reference against Justice Isa: President didn’t use his mind, says judges

ISLAMABAD: Two Supreme Court of Pakistan judges, who were a part of the 10-member full bench that had quashed the Presidential Reference against Justice Qazi Faez Isa and ruled to refer the property issues of members of the Justice Qazi Faez Isa’s family to the Federal Board of Revenue (FBR) for inquiry, issued their dissenting notes on Wednesday, in which it was observed that Justice Faez Isa was targeted, and that the president did not apply his mind and form his own opinion on the “information” received.

The notes were issued by Justices Maqbool Baqar and Syed Mansoor Ali Shah. A third judge Justice Yahya Khan Afridi had sent his dissenting note earlier.

“We (Justices Syed Mansoor Ali Shah and Yahya Afridi) have however not been able to persuade ourselves to agree with the part of the short order as contained in paragraphs 3 to 11 thereof whereby directions have been issued to the FBR to issue notices and initiate proceedings against the wife and children of the petitioner and for submitting the report of the said proceedings to the SJC [Supreme Judicial Council] for the later to proceed in the matter as contemplated in the aforesaid paragraphs and with various other directions contained therein for the following reasons,” said Justice Maqbool Baqar in his 68-page dissenting note.

He said that there was no justification for directions and guidelines to the FBR. The said directions were clearly beyond the scope of the petition allowed disposed of through the short order, the judge observed.

“I found that the allegations against the petitioner were wholly unfounded baseless frivolous misconceived and mala fide and that the petitioner was right in claiming the purported Reference to be a product of animosity malice of law as well as of facts and that it streams from the ill will harbored by some functionaries of the executive against the petitioner,” he further maintained in his statement.

Justice Baqar added that it was found that despite commissioning the entire government machinery to somehow ferret some excuse to proceed to dislodge the petitioner and misusing the government departments and resources in unconstitutional and unlawful manner in that pursuit including covertly surveilling the petitioner and his family the official respondents have neither been able to show any illegality or misconduct on the part of the petitioner nor that the wife and children of the petitioner are his dependents.

He added: “As discussed in detail earlier neither any provision of the ITO 2001 nor of any other law requires the petitioner to make the disclosure as was contended. There is no concept of any vicarious liability under the income tax law as was suggested by the respondents.”

According to Justice Baqar, the reference alleged that Justice Isa failed to declare in his wealth statements three properties owned by his wife and adult children in London and that the source of acquiring the properties had not been disclosed. “It was contended that it can therefore not be ruled out that the properties have been acquired through money laundering.”

He noted that the case was a “ruse to camouflage the fact that the purported reference was a product of the animus and ill-will harboured by the main ruling political parties and some government agencies against the petitioner [Justice Isa], and of their desire to remove the petitioner from his office, whom they perceived as an obstacle in their riding this country roughshod, and also to over owe the other judges of the superior courts of this country into subjugation”.

He noted that Justice Isa was appointed as a one-man commission to investigate a 2016 suicide bombing in Quetta in which 75 people (mostly lawyers) were killed. “His report was unsparing of the role of the various intelligence agencies operating in Balochistan at the time and raised many hackles.” His lawyer had mentioned this during the trial.

He also referenced the 2017 Faizabad Dharna case Justice Isa gave the judgment in, which “triggered a chain of events that eventually led to the filing of the purported reference”.

Justice Baqar also referenced several sections from Justice Isa’s judgments and said Justice Isa’s laywer Muneer A Malik submitted that while otherwise unexceptionable in law, “the inconvenient truths mentioned in the judgment sparked the fury of not only the ruling political parties, but also the various State agencies and departments mentioned therein”.

Justice Baqar also questioned the veracity of the person who filed the complaint against Justice Isa. Dogar didn’t give his phone number or address and claimed to be a journalist but didn’t disclose whom he worked for.

“The purported complainant has also not disclosed as to how, in the first place, he came to know about the alleged ownership of the properties, particularly when he did not even know the names of the petitioner’s wife and children, the alleged owners of the properties, and more intriguingly, as to how he discovered that the properties were not disclosed by the petitioner in his wealth statements, which is a confidential information, protected under the income tax law, unauthorized disclosure whereof is a penal offence.”

The dissenting note casts doubt on the process through which the case was prepared against Justice Isa by the complainant, Assets Recovery Unit chairman, law minister, FIA and FBR. Justice Baqar also said President Arif Alvi violated the rules by not ensuring that the reference had the approval of the cabinet before being sent to him nor did he have the jurisdiction to entertain the petition, which was filed by a private complainant.

“By following the advice of the prime minister, and not applying himself independently, the president has committed a gross violation of the Constitution,” noted the judge. He also touched upon a 1998 SC judgment that disqualified then premier Benazir Bhutto and held that covert surveillance of judges by intelligence agencies was in and by itself sufficient ground for the dissolution of a government.

He quoted the judgment as saying that “if the executive interferes with the judiciary in any manner… [i]f the privacy of the Judges and their communications is not ensured, then it is not possible for them to discharge their duties in the manner envisaged and mandated by the Constitution.”

“Twenty-two years have passed since this judgment but it continued to be disregarded. Such disregard is at the nation’s peril, destructive of the Judiciary’s independence and in negation of the Constitution.”

Justice Baqar referenced petitions filed by the MQM and PTI against Justice Isa and said they don’t want him to be a judge or hear review petitions. “Indeed direct proof of a collateral purpose, an ulterior or improper motive is exceedingly rare, however, this is one of those rare cases where the relevant actors have actually submitted their collateral purpose and motive to the Court in writing. The emergence of this complaint and the filing of this Reference, regarding purchases made back in 2004 and 2013, barely a month after these review petitions is not a mere coincidence,” he noted.

“The role of the three organs of the state the Executive the Legislature and the Judiciary are well defined by the Constitution. Judiciary being the guardian of the Constitution has to ensure this principle is maintained by all the three,” he maintained, adding that the onus of maintaining the prescribed balance is heaviest on the judiciary.

Justice Mansoor Ali Shah held in his separate note: “If we start reading the events after the Faizabad Dharna judgment, one is compelled to conclude that the petitioner judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power.

This fact is floating on the record of the review petitions. The vengeance and resentment against the Petitioner Judge is more than visible from the strange and unprecedented assertions made for his removal on the ground of misconduct in the review petitions; soon it took shape of a vague complaint filed before an incompetent authority (ARU) housed in the office of the prime minister. The vengeance and resentment continued with the entertainment of the bogus complaint, unauthorized investigation and collection of evidence through the surveillance of the petitioner judge and his family, illegally seeking information from statutory institutions and using the illegally collected evidence for making advice to the president to send the reference against the petitioner judge.”

He noted that advising the president to proceed against a judge of the highest court of the land required the prime minister to exercise due diligence and careful consideration of the contents of the summary placed before him.

The judge noted that the law minister opined in the summary put up before the prime minister that the petitioner judge appeared to have committed “grave misconduct” by not declaring three London properties owned by his spouse and children and by not explaining the source of their purchase in his tax record, without appreciating, rather ignoring altogether, the fact that no office or authority in Pakistan, under the relevant law, had ever asked the spouse and children of the Petitioner Judge to explain their sources to purchase the said properties and their failure to declare the same in their tax record, if there was any obligation for such declaration under the law.

Justice Mansoor Ali Shah observed that it was not just any business the prime minister was attending to, he was approving initiation of inquiry against a Supreme Court judge, but he took no pains to see that the ARU, besides being a non-entity had no authority under the law to investigate and collect evidence on a complaint that could not have been entertained by the ARU.

“He also failed to verify how the addresses of the three foreign properties were discovered and who authorized the ARU to carry out transnational investigation and surveillance and whether any office or authority had asked the spouse and children of the Petitioner Judge to explain the sources of purchase of those properties”, Justice Shah added.

The judge further held that without attending to the above material objections against the information placed before him and without taking due care, the prime minister advised the president on the basis of the evidence illegally collected by the chairman, ARU on the oral advice of the law minister, to direct the council to hold an inquiry against the petitioner judge.

Similarly, Justice Mansoor Ali Shah noted that as a Head of the State, the president is the best person to review the “information” placed against a constitutional court judge by a constituent of the State, be it federal, provincial or local government

“His role under Article 209(5) is not to execute an executive function, but act as an arbiter on a conflict between two State institutions”, Justice Shah held.

The judge further noted that failure of the president to form his “opinion” in this case has resulted in the president rubber stamping unconstitutional and illegal “information” into a Reference by directing the council to inquire into the matter of the petitioner judge.

“This has compromised the neutrality of the office of the president and besmirched his exalted office”, Justice Shah observed, adding that in the present case, the president did not apply his mind and form his own opinion on the “information” received; he simply approved the advice of the prime minister and signed the draft Reference submitted with that advice.

“The formation of opinion and the direction to the Council to hold an inquiry was, therefore, not that of the President; both these acts are declared to have been made without jurisdiction and coram non judice, and thus unconstitutional and of no legal effect,” Justice Shah held.

The judge further noted that it is a matter of record that the Reference was publicised even when it had not yet been placed before the Council for preliminary consideration, as the filing of the Reference and the allegations made therein against the Petitioner Judge was published in several newspapers on May 28, 29, 30 and 31, and June 1 and 3, 2019 and later during the proceedings before the council the matter was discussed in press conferences and TV talk shows by the government ministers and even by the President of Pakistan.

“The act of publicising the filing of the Reference against the Petitioner Judge and of the allegations made therein, is clearly unconstitutional and falls within the scope of the provisions of Article 204 of the Constitution and the Contempt of Court Ordinance, 2003”, Justice Shah noted.

He directed the concerned authorities to initiate criminal and disciplinary proceedings against the chairman, legal expert and members of the ARU, as well as, against the other defaulting officials of FBR and Nadra for their illegal acts, under the IFTA, ITO and Nadra Ordinance 2000.

Similarly, the judge directed the Registrar Office to place the matter before the Chief Justice of Pakistan for considering to initiate appropriate proceedings for a thorough inquiry of the matter of leaking and publicising the Reference and the allegations made therein, and for taking legal action against the persons found involved.

The judge noted that a judge is to always tread the path of the Constitution and the law, must possess strength of character to never give in to external influence for personal benefit, and must be bold and courageous to always stand for the Constitution and to preserve, protect and defend it. Any compromise on this sacred promise with God, is to comprise judicial integrity.

“We must remember that public confidence and public trust in the legitimacy of the judicial institution can only be attained when judges decide without fear or favour, in accordance with law, even while sitting in judgment over the affairs of their own colleague,” Justice Shah noted.

He noted that while dealing with judicial accountability we are not to project a forced image of self-accountability to win accolades of the public or make extra effort to win over public confidence.

“We are to simply decide in accordance with the Constitution and the law – come what may”, the judged further noted Referring to entertainment of Complaint by ARU, Justice Mansoor Ali Shah noted that first and foremost, the complainant could only have approached the constitutional forums provided under Article 209(5) of the Constitution and could not have filed the complaint before any other office or authority.

Therefore, he observed that the very act of approaching the ARU was per se unconstitutional and illegal and noted with concern and suspicion that how did the complainant, a citizen of this country, plan on filing the complaint against a constitutional court judge before the ARU, which had no public interface or the legal mandate to deal with such a matter and had earlier never conducted any inquiry for the accountability of a constitutional court judge.

Justice Shah observed that the ARU was not a ministry or division of any ministry of the federal government, or an attached department, neither was it a statutory authority nor had the notification of its establishment been published in the official gazette for public information.

“The ARU, therefore, for all practical purposes did not legally exist for the world outside the Prime Minister’s Office. However, the complainant instead of approaching the Council, which would have ordinarily come to the mind of a citizen, particularly in view of the publically known recent removal of a High Court Judge by the President on the recommendation of the Council, approached the ARU for the accountability of judges.

“This looks more odd especially when the complainant claims to be a journalist. Such an unusual step by the complainant raises eyebrows about the credibility of the complaint and the bonafide of the complainant,” the judge noted.

Justice Mansoor Ali Shah further held that the appointment of the Chairman, ARU by the Cabinet is not backed by any law including any rule of the ROB. Even otherwise, the ROB made under Article 99(3) of the Constitution cannot provide for creation of posts in connection with the affairs of the Federation

The judge noted that the ARU, it is stated as a matter of example, was not even entitled to proceed against a peon at the Prime Minister’s Office. “Thus, the appointment of the Chairman, ARU by the Cabinet was without lawful authority, and is so declared,” Justice Shah held.

“Can the Special Assistant wield power over statutory institutions like FBR, Nadra and FIA without any sanction of law? Can a law minister, ignore the law, the Constitution and the statutory institutions of the State and permit ARU to entertain, investigate and collect evidence on a private complaint against a constitutional court judge? Is the law minister justified to place a summary based upon the evidence so collected, before the prime minister for approval? Is there a level of responsibility expected of the prime minister, who is the Chief Executive of the Federation and Head of the Cabinet, in APPROVING Summaries placed before him?

“In a matter no less serious than the removal of a judge of the highest court in the land, was the prime minister required to inquire how the “information” placed before him was collected and whether the information collected actually made out a case of “misconduct” against the Petitioner judge or is the Prime Minister to impetuously approve summaries without any application of mind? Can government in a constitutional democracy be driven by personal bias, malice, intolerance and bigotry or should an institutional process run it with collegiality, transparency, fairness, openness, diversity and inclusiveness as its hallmarks? Are we to expand our frontiers of freedom as we mature into a democracy and strengthen our constitutional guarantees 1 The substantive legal post of chairman, ARU, is that of a Special Assistant to the Prime Minister. 2 Asset Recovery Unit ( discussed in detail later) Const. P. No.17 of 2020, etc. 2 with renewed confidence and enthusiasm or regress into darkness by permitting unconstitutional acts that allow muffling of a critical judicial voice in the name of judicial accountability? This case makes us think, whether we want our future generations to descend into a dystopia or grow up into a vibrant democracy with an understanding and conviction that ‘in a democracy, the State is neither with us nor against us. It is us’,” Justice MAnsoor Ali Shah quoted from Jonathan Sumption’s ‘Trials of the State: Law and the Decline of Politics’.