ISLAMABAD: A 10-judge bench of the Supreme Court will formally commence hearing of a set of review petitions in the Justice Qazi Faez Isa case from next month after Chief Justice of Pakistan (CJP) Gulzar Ahmed on Tuesday decided the matter that had been referred to him a day ago by a six-member review bench to determine if the same or a larger bench hear the review petitions.

The three judges namely Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi, who were part of the original bench that had decided the case but were not made part of the previously constituted review bench, have been added to the new bench, also to be headed by Justice Umar Ata Bandial. Besides, Justice Aminuddin Khan, who was not present in the original bench in the first round of litigation, has also been made part of the bench this time.

The composition of the previously constituted review bench had been challenged by the petitioners on the plea that all the three judges who had dissented from the majority decision in the case against Justice Isa were not made part of the review bench. Justice Baqar, Justice Shah and Justice Afridi had also quashed the presidential reference against Justice Isa, but had written dissenting notes against the majority decision, and held that the proceedings along with the show-cause notice issued by the Supreme Judicial Council (SJC) against Justice Isa stood abated.

As the composition of the review bench was challenged, the six-judge SC bench, headed by Justice Bandial, reserved its ruling on Dec 10 to adjudicate whether the same six-judge bench or a larger bench determine the set of petitions seeking review in the Justice Isa case. Finally, a 28-page order was issued on February 22, referring the matter back to the chief justice, the master of court roster, to determine about the composition of a bench – in view of the settled practice – and may constitute a larger bench for hearing the review petitions.

Hearing of review petitions to begin on March 1; reconstituted bench includes three judges who had dissented from majority decision

Consequently the court office was directed to place the review petitions before the chief justice to issue directions for the constitution of the bench as deemed appropriate.

On Tuesday, the CJP formed a 10-judge bench headed by Justice Bandial and also comprising Justice Baqar, Justice Manzoor Ahmad Malik, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Afridi, Justice Qazi Mohammad Amin Ahmed and Justice Aminuddin Khan.

According to the review petition, the directions to the tax authorities in paragraph 4 to 11 of the June 19, 2020 short order of the apex court in the presence of the specific provisions of the Income Tax Ordinance (ITO) were in the nature of legislation and that too ‘person specific’ and thus without jurisdiction. More so when the directions had been issued to the very tax authorities, which had disclosed information to persons conducting an investigation that was not duly sanctioned, the petition argued. Also, the directions to the SJC in paragraph 9 of the June 19 order had the effect of tainting the reputation of Justice Isa, the petition regretted.

Requiring the Federal Board of Revenue (FBR) to report in respect of the proceedings ordered against Justice Isa’s spouse and children and mandating the SJC to consider it, in effect created an “additional mechanism by which the executive could place information before the SJC”, the petition said.

The SJC only has jurisdiction over the superior court judges and FBR report about the “spouse and children” of the petitioner were beyond the jurisdiction of SJC, the amended petition argued.

According to the review petition, the executive could only proceed against a constitutional judge through a presidential reference under Article 209(5) of the Constitution and surely the FBR chairman could not and ought not send reports as to “perceived discrepancies in the tax returns of the spouse” may consider as information. Thus singling out the Justice Isa’s spouse discriminates against his family. By rejecting the allegations of malice levelled by Justice Isa through his petition against the government officials in the majority judgement omitted to take into consideration the crucial facts.

The majority judgement falls into patent error by being swayed by the withdrawal of the PTI review petition in the Faizabad sit-in judgement, which had brazenly sought removal of Justice Isa on the basis of that judgement, without failing to appreciate that the language of the original review petition was cited not for purposes of deciding the review petition but merely for demonstrating the state of mind of the ruling party vis-a-vis Justice Isa, according to the petition.

Published in Dawn, February 24th, 2021