ISLAMABAD: In a clear message that the presidential reference against one of their brother judges may not survive due to legal defects, the Supreme Court on Tuesday proposed to the government a way out by considering exhausting tax remedies first for not declaring three offshore properties by the judge’s wife.

Let the Federal Board of Revenue (FBR) ask her about the source of income and if the lady gives a satisfactory response, then the reference is over, otherwise the Supreme Judicial Council (SJC) may resume the inquiry, suggested Justice Umar Ata Bandial, who is heading the 10-judge full court hearing a set of challenges to the filing of the presidential reference against Justice Qazi Faez Isa.

In case the government acceded to the proposal, the SC would then seek consent from Advocate Muneer A. Malik, who is representing the petitioner judge, Justice Bandial added.

Dr Farogh Nasim, representing the federal government, sought a day’s time to seek instructions from the client and respond to the proposal. When he asked how much time the court was willing to afford to complete the tax process at the appropriate forum, Justice Bandial replied that they would have two full months at their disposal to pursue the tax proceedings when the SC would be on the summer vacation.

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Justice Bandial observed that if the government’s prime concern was to know the sources of funds to acquire the properties, it was only possible through the proper mechanism which was tax proceeding. But instead of issuing a notice under Section 114 or 116 of the Income Tax Ordinance (ITO) to the judge’s wife for not declaring the properties, the government went straight to the SJC against the apex court judge, he observed.

He highlighted that if the government insisted on proceeding with the matter, then the issue regarding malice, collection of material against the judge through illegal means, covert surveillance as well as smear campaign may surface. He observed that the counsel representing the government must have realized that not all but some members of the bench could write something about it.

“And you should know also that it will have serious consequences,” Justice Maqbool Baqar said, adding that he himself would have no objection if the due legal process had been followed.

Justice Faisal Arab and Justice Sajjad Ali Shah also supported the proposal, stating that the bench did not want a bad name be given to the Supreme Court yet a fair opportunity to the judge must be given.

After the members’ recent observation regarding the ongoing propaganda against judges, Dr Nasim, too, on Tuesday condemned all kinds of smear campaign against Justice Isa, but at the same time regretted his description as a “tout” by the petitioner judge in one of his replies. Was this becoming of a judge, the counsel questioned, highlighting what the petitioner had stated in his replies about the premier as well as Assets Recovery Unit (ARU) Chairman Mirza Shahzad Akbar. “I cannot tell of the ordeal I went through,” the counsel bemoaned.

“You cannot imagine the situation the judge underwent, but he has survived because he is a man of strong will, otherwise, he would have crumbled,” Justice Baqar remarked, while reminding him about the press conferences by former PM’s aide Dr Firdous Ashiq Awan and others about the judge.

“Let’s not go into these, otherwise it will go much further,” Justice Baqar observed, explaining that the country could ill afford any turmoil at this juncture.

Justice Bandial suggested the counsel to be patient.

The counsel argued that the judges were required to declare the assets of his family and if the SJC was calling upon the judge to explain how the properties were developed, the judge should explain it as it would only add to his prestige if he did so.

The judiciary in Pakistan enjoyed a unique status against the backdrop of the 2007 lawyers’ movement, Dr Nasim contended, adding that with greater power, comes greater responsibility. He said the fiduciary duty demands that when a public servant acts as a trustee or was in a fiduciary capacity then the laws reckons that the rule of close proximity between his spouse and dependent children will apply and their identity cannot be split.

Justice Baqar said it would be a novel idea if it was held that any property of a spouse or children would deemed to be the property of the judge.

Except that of his articulation, nowhere the rule of ‘close proximity’ had ever been mentioned in any law, Justice Syed Mansoor Ali Shah added.

The counsel argued that some information regarding the three properties was lacking, therefore the government had to “send it to the appropriate forum for collection of the information”, but to say that no material was presented to President Arif Alvi to form his opinion was wrong as the SJC did not throw away the reference straight away. The issuance of the show cause to the judge by the SJC, according the counsel, suggested that the President stand vindicated.

But Justice Shah observed that rushing the material to the President was not explainable. He asked if the President was under any obligation to form an opinion on the material sent to him.

Justice Baqar wondered whether the President enjoyed the prerogative to determine who had committed misconduct and who had not.

The counsel argued that it was not the question of prerogative rather proceedings before the SJC were independent proceedings. He asked the full court to remember that its judgement would be for all times to come.

“That is why we are emphasising that the opinion of the President should be insulated from the executive, since he enjoyed a unique position,” Justice Shah observed, adding what value the opinion of the President would have if he was considered part of the executive.

But the counsel argued that this insulation was for the SJC only and not for the President, otherwise Article 48 of the Constitution would become redundant.

Justice Baqar then reminded the counsel that it was wrong to suggest that the President was bound to act on the advice on all matters since the Constitution asked the President to act on the advice only on eight instances and not more.

Justice Bandial also reminded the counsel that the President was not a rubber stamp and could send back any advice for reconsideration under Article 48(1) of the Constitution. “This we will also write in our judgement,” Justice Bandial remarked.

Published in Dawn, June 17th, 2020