ISLAMABAD: Justice Qazi Faez Isa has informed the Supreme Court that the federal government has resorted to bald-faced lies and blatant inventions to defame and scandalise a superior court judge by accusing him of possessing “benami” properties abroad when the reference against him contains no such allegations.

The government’s team first painted a target on the petitioner’s back but when it did not work, they stooped to target his family and exposed them to danger, the rejoinder filed by the petitioner judge in response to government allegations said, adding that this was a demonstrable fact showing malice, mala fide, ulterior motives and victimisation.

The objective of the government’s team was to ensure subservience of judges, failing which judges and their families would be put under surveillance, information about their families would be gathered illegally to defame and victimise them and exposing them to danger, it alleged.

Creating such an environment through deception, guile and dominance, the government’s team was attempting to destroy the independence of the judiciary, the rejoinder feared.

The petitioner judge said he was under no obligation to declare the income or assets or money trail of his independent wife and children since Pakistani law did not conflate the identities of different family members merely on account of their kinship.

Files rejoinder in response to allegations as SC set to take up petitions against reference today

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Authored by his counsel Muneer A. Malik, the petitioner judge furnished two rejoinders to rebut the allegations levelled by the federal government in its reply and those on behalf of the Supreme Judicial Council.

The law of benami set out a number of tests to establish benami ownership, but in the present case not even a single component was met, the rejoinder contended. There was not an iota of evidence to prove that the petitioner judge had paid for the purchase, let alone established that. No reason was ever given why the petitioner judge would resort to buying properties in the name of his wife and adult-children, the rejoinder questioned.

If the petitioner judge and his wife’s income tax filings could be publicly displayed, then the government/FBR had no immunity to keep hidden the prime minister’s income tax returns and wealth statements, the rejoinder observed, also alleging that the prime minister was seeking immunity under Article 248 of the Constitution despite knowing that the income tax returns and wealth statements of any person could not be hidden under the cloak of constitutional immunity.

Moreover, the federal government embarked upon a roving expedition to fish out the petitioner’s income tax returns for ascertaining his income over the years and sufficiency of tax-paid (white) money to buy these properties, but presumably found no discrepancy. It was also not mentioned that subsequent to the purchase of the properties, the petitioner received any rent, the rejoinder explained, adding that in other words, the federation did not have even a fig-leaf of a benami case against him.

The information forming basis of the reference, the rejoinder said, was gathered through covert surveillance by different government agencies and a proxy complainant was subsequently set up and a sham investigative exercise was carried out by the Asset Recovery Unit (ARU) to legitimise the same.

Neither the ARU nor its chairman had any constitutional authority to receive a complaint of misconduct against superior court judges, the rejoinder emphasised, nor did they have any constitutional authority to direct any investigation, verification or collection of material. The ARU and its chairman had no legal authority to initiate investigation or scrutiny of any person whatsoever (much less a Supreme Court judge), nor could they direct any agency or department to share any confidential data about the petitioner or his family, the rejoinder argued.

It was admitted that neither the president, nor the prime minister or the cabinet had ever authorised the collection or verification of material in relation to the reference against the petitioner, the rejoinder contended.

The petitioner judge explained that filing of a reference against a judge was an executive function and the same was to be exercised by the cabinet collectively. The president’s opinion and actions under Article 209 were to be formed and exercised as per the advice of the cabinet under Article 48 of the Constitution. But the same was admittedly lacking in the present case, the rejoinder pointed out.

Moreover, the president had to perform such functions after application of his own independent mind as mere and singular advice of the prime minister was insufficient, the rejoinder said.

The rejoinder argued that the petitioner judge could not be compelled to provide information about the properties independently owned by his wife and children particularly when his wife and adult children were not his dependents and conduct their own affairs independently.

The fact that nothing was enquired from the owners of the properties confirmed that they were satisfied with their financial affairs but he was targeted for obvious mala fide reasons with the pre-planned ulterior objective to remove him, Justice Isa observed.

The rejoinder recalled that the Attorney-General was a constitutional office holder but unfortunately the AG voluntarily assumed (in his own reply filed before the SJC) the role of a prosecutor and persecutor of the petitioner judge. It was unfortunate that the SJC nevertheless considered it appropriate to be represented in the current petition through him, the rejoinder added.

About the sources of income of his family members, the petitioner judge explained that in 2013 his daughter and son were married and working. His daughter was working in a law firm in the UK while her husband was also a working barrister. Likewise, his son was employed at an estate agency and he also did jobs as an independent contractor, whereas his wife was an analyst at a private equity firm, the rejoinder said.

While none of this had been denied by the federation, it still alleged that the petitioner’s children had no independent source of income, the petitioner judge added. What was propagated by the Nazi Joseph Goebbels that – repeat a lie often enough and it becomes the truth – was the same tactic being employed against the petitioner, the rejoinder alleged.

Published in Dawn, October 14th, 2019