ISLAMABAD: The Supreme Court on Thursday asked the federal government’s counsel, Dr Farogh Naseem, to identify the ‘bright light’ that came up with the idea of filing a presidential reference against a superior court judge and thus made a serious error of judgement.

“In a very polite manner I am saying that the bright light made a very serious error of judgement rather it was a missed call,” Justice Muneeb Akhtar observed. He wondered whether it was permissible under the Constitution for the president or the prime minister to form an opinion on a legal matter which was wrong in law.

“And if the president made the error then the reference becomes a ‘blank piece of paper’,” Justice Akhtar observed, recalling a term used recently by the United Kingdom’s Supreme Court in the Brexit case.

Justice Akhtar is a member of the 10-judge full court that has taken up a set of petitions challenging the filing of the presidential reference against Justice Qazi Faez Isa, a judge of the Supreme Court.

Justice Akhtar said “what is puzzling our mind” was how the Assets Recovery Unit (ARU) concluded that the funds used for acquiring three offshore properties were the proceeds of crime, but highlighted that when the properties were acquired in 2013 for which the income must have been earned prior to 2013 was not an offence since the breach of money laundering and the Foreign Exchange Regulations Act were added to the schedule of the Income Tax Ordinance in 2015 and 2016, respectively.

Justice Akhtar says if president made an error then the reference becomes a ‘blank piece of paper’

The ARU had no authority to come to the conclusion that the judge had committed misconduct and if the unit got it wrong in law then surely the action taken by it would be without jurisdiction, he observed.

Dr Nasim contended that the ARU had never stated this and presented his formulations containing 27 points to answer the queries raised by the court during the course of hearing over the last two days.

Since there was no law before 2016, the allegation of money laundering was out of the window, observed Justice Umar Ata Bandial, who was heading the full court. Who was the person who got the bright idea of sending the matter straight to the president for filing the reference, instead of NAB or the FBR, which become scarred, he wondered.

The correspondence between the ARU and the law ministry was about accountability of judges as if they were sitting with preconceived mind that money laundering had taken place and it was a good way to hold the judges accountable, Justice Bandial said.

Justice Maqbool Baqar cautioned the counsel to keep in mind the consequences that might follow in case it was established that a wrong decision was made, recalling how a former government spokesperson [Dr Firdous Ashiq Awan] had at a press conference claimed that Justice Isa played a shot while stepping out of the crease.

Justice Baqar observed that the president had to form an independent opinion within the ambit of law whether the information before him was worthwhile to be sent to the Supreme Judicial Council (SJC).

Dr Nasim contended that it was wrong to suggest that the president and the prime minister should have a brilliant legal mind since one was a dentist by profession while the other was an Oxford graduate with a cricketing legacy as the entire system of governance functioned through secretaries and proper summaries. But the key question here was non-disclosure of the foreign properties in tax returns and the mode of transfer of the funds to buy the properties, he said.

“That is the reason why this court is examining whether there is malice before sending the reference to SJC,” Justice Bandial said, adding that the counsel seemed admitting that the reference suffered with defects and contained malice. The counsel should convince the court about the impropriety committed by the judge that had shaken the confidence of the public, he observed.

Justice Sajjad Ali Shah reminded that the real purpose behind creating the ARU was to bring back the ill-gotten money, but the counsel should tell the court what action the ARU had taken in this regard when the judge claimed that he was not a beneficial owner of the properties as alleged.

Justice Bandial observed that independence of the judiciary was not a small thing since it was safeguarded by Article 209 of the Constitution. Therefore, he said, the president before sending a reference to the SJC must form an independent opinion, adding that under Article 48 of the Constitution, the president had the power to send any matter back for the reconsideration — one of the vehicles to make the Constitution workable.

“We will be moving on a wrong track if we believe that the president is bound to follow the advice of the prime minister,” Justice Bandial said.

Referring to ARU’s legal sanctity, Dr Nasim recalled that the unit was created by the present government against the backdrop of 2018 Supreme Court suo motu hearing on foreign assets and properties by Pakistani nationals. The Supreme Court had held that it was a fundamental right of the people of this country that their wealth should not be stolen by making properties abroad through tax evasion without disclosing in tax returns, the counsel argued.

During the hearing, multiple agencies were directed to bring back the stolen wealth realising that unless holistic or synchronize approach was made, it was not possible to bring the money back, the counsel said, adding that the court was informed during the hearing that a staggering $15.3 billion was transferred out of Pakistan through normal banking channels alone.

Dr Nasim admitted that the apex court had never issued directives to constitute ARU, but the prime minister appointed Mirza Shahzad Akbar as his special assistant on accountability because of his expertise on the subject, assigning him the task to trace and retrieve assets from abroad.

Justice Yahya Afridi, however, said Shahzad Akbar was appointed on Aug 20, 2018, but the same day a summary was placed and terms of reference of the ARU were finalised.

There was an allegation that the material against the judge was with Mr Akbar when he was appointed, Justice Baqar recalled, wondering whether the counsel had ever seen such competence and speed in other cases.

The counsel said the ARU was established on the task force appointed by the apex court, adding that the Rules of Business of the government sanctioned appointment of such an institution and empowered the prime minister to create any new ministry. The unit was made under the residuary power of the prime minister as well as the cabinet, he said, adding that the ARU was parked under the cabinet. Thus the creation of the ARU was a valid exercise and there was no invalidity behind setting up of the unit since it was endorsed and created by the prime minister and the cabinet, the counsel argued.

Justice Syed Mansoor Ali Shah asked about the legislation behind the creation of the ARU since its establishment seemed to be an exercise under the executive authority. Institutions like the FBR and FIA functioned under proper statutory backing of the law, he said but dispelled an impression that judges were above the law and could, therefore, not be accountable. “If any judge is guilty of breaching the law, FBR is free to probe him,” Justice Shah said.

Justice Yahya Afridi asked why a special person was brought in to do a duty already assigned to statutory bodies like the FIA, wondering whether the agency was not functioning.

Published in Dawn, June 5th, 2020