ISLAMABAD: The office of the Assets Recovery Unit’s (ARU) chairman does not fall under the definition of the “service of Pakistan” since the individual concerned is a special assistant to the prime minister, argued Advocate Babar Sattar before a 10-judge full court of the Supreme Court on Tuesday during the hearing of a set of challenges to the presidential reference against Justice Qazi Faez Isa.

“The ARU is not a department established under the law and at best it can be said that it was set up under an executive order,” Babar Sattar said, citing rules dealing with the service of Pakistan.

Justice Umar Ata Bandial heads the full court.

Babar Sattar, who was on his legs for the second consecutive day, was trying to establish that the exercise of collecting material by ARU was not done under any authorisation.

The ARU chairman should not be treated as an officer of the federal government, the counsel stressed, but hastened to add that it was for the federal government to explain to the court the department’s legal status.

Referring to Section 216(p) of the Income Tax Ordinance (ITO), Mr Sattar argued that no court or authority, including the Supreme Judicial Council (SJC), can ask for information regarding tax returns or wealth statement of Justice Isa’s wife, especially when she was not a public servant.

The real dispute at hand, the counsel argued, was that material placed before the President was not substantial enough to convince him that the allegations made against the judge were sufficient to become a reference on misconduct.

Quoting excerpts from the Foreign Exchange Regulations Act as well as the Money Laundering Act, Babar Sattar contended that none of the machinery available under these statutes was ever set in motion for collection of evidence against the judge or any report from the State Bank of Pakistan (SBP) was called to establish violation of foreign exchange regulations.

Justice Bandial observed that the code of conduct for judges dealt with impropriety and conduct, emphasising that this code was not meant to protect judges only, but to safeguard the judiciary as an institution.

The code of conduct was invoked in the Justice Isa case and the allegation of misconduct levelled against him for not disclosing the source of funds for acquiring properties in Britain, Justice Bandial explained.

But the counsel retorted that under the code of conduct, the judge has to be blameless in the eye of certain laws and it was not right to indulge in mudslinging just because “12 people stood up and pointed fingers” at the judge.

Justice Bandial advised Mr Sattar not to formulate arguments that he cannot substantiate by citing case laws.

The lawyer explained that the SJC cannot determine the civil rights of a judge and cited the money laundering act to argue that only the Financial Monitoring Unit (FMU) can examine allegations of money laundering since it was founded under the law.

But none of the reports prepared by FMU was before the President when he formed his opinion. Thus the president has drawn an inference against the judge without any material to establish breach of the foreign exchange act or money laundering laws, he contended.

Since the doctrine of sufficient connection (for drawing inference) has no place in the constitution or recognised by the code of conduct or any law, no duty or obligation of disclosing assets owned by his wife and children could be placed on the judge.

Justice Muneeb Akhtar wondered whether this doctrine existed in the country’s laws, but the counsel repeated that this doctrine had no place in Pakistan.

Referring to a letter of the Federal Board of Revenue (FBR) to the ARU chairman, the counsel argued that the Income Tax Ordinance (ITO), 2001, did not vest any advisory jurisdiction upon any officer.

The counsel referred to different sections of ITO to state that tax officers enjoyed jurisdiction of assessment, revision and appellate authority to impose penalties, but no advisory jurisdiction.

Justice Maqbool Baqar asked Mr Sattar whether disclosure of unauthorised tax returns was an offence or not.

Justice Muneeb Akhtar explained that it was a criminal offence and the offender can go to jail for almost a year.

He observed that since public servants can park assets in the name of their spouses, the authorities can establish reasonable nexus between an official and the spouse.

Justice Syed Mansoor Ali Shah asked the counsel whether the President, before invoking Article 209 of the constitution, can ask the complainant to provide further evidence so that SJC proceedings be initiated against the judge or he can put the entire government machinery to work for the collection of evidence.

The counsel explained that the idea behind Article 209 was to protect the tenure of a judge and that the President cannot ask for launching a fishing expedition.

Instead of formulating a reference against the judge, at best FBR could have issued show cause notice to the spouse to explain why offshore properties were not disclosed and then could have issued an order for reassessment of the returns and in case the spouse was not satisfied, she could have challenged the reassessment order.

Published in Dawn, November 13th, 2019