ISLAMABAD: The senior counsel representing Justice Qazi Faez Isa argued before the Supreme Court on Monday that even the prime minister cannot ask any income tax officer to hand over tax records of an individual since such a request does not fall within the purview of the income tax laws.

Advocate Munir A. Malik contended before the full court of the Supreme Court hearing a set of challenges to the filing of a presidential reference against Justice Isa that disclosures regarding tax records of a taxpayer were related only to a criminal trial, emphasising that both the Income Tax Ordinance (ITO) 2001 as well as Nadra Ordinance 2000 imposed statutory duty on confidentiality.

Referring to Section 216 of ITO, the counsel said the law dealt with maintaining confidentiality of the tax history of a certain individual, also highlighting that Section 198 of the tax law imposes one-year jail term with a fine of Rs500,000 for breaching the confidentiality regarding the tax history whereas section 199 of the same law also includes abettors like the officers who pass on the information.

Any superstructure built on illegality must fall to the ground, the counsel contended. The presidential reference against Justice Isa for not disclosing offshore properties owned by his wife and children was based on illegalities committed in such a manner that the entire exercise stands vitiated.

Thus on May 10 when the tax commissioners and other tax officers prepared different reports on the same day to be forwarded to the chairman of the Asset Recovery Unit (ARU), they were all guilty of sharing the tax records of Justice Isa, the counsel contended.

Nothing prevented the ARU chairman from referring the matter to the Supreme Judicial Council (SJC) when he received a complaint by Abdul Waheed Dogar against Justice Isa, argued the counsel.

Munir Malik cited a 2017 case, namely Ingenious Media Holding, from the All England Report only to establish that even the common law recognises the duty of confidentiality of public functionaries.

The verdict had held that a public functionary, upon receiving information of a personal nature, cannot use it for any purpose other than what it had been provided for.

Likewise, rule 18 of the Government Servants (Conduct) Rules 1964 requires that no government servant will pass on any document or information to an unauthorised individual, even if the person is a government official, or to the media.

During the hearing Justice Umar Ata Bandial, who heads the full court, observed the counsel was suggesting that the reference should be ignored in view of the way the evidence was collected. The counsel replied in the affirmative.

Justice Bandial, however, observed that “we can assume as if the evidence was admissible even though it suffered from defects like the way it was collected as the president had to apply his mind before forming the opinion”.

The counsel argued that the president should not form his opinion on the basis of material collected by any subordinate authority against a judge.

“What you are suggesting is that the material before the president to form his opinion for the filing of reference was not actionable,” observed Justice Maqbool Babar.

But Justice Syed Mansoor Ali Shah said that by asking nobody goes into finding from where the information has come in cases relating to the general laws like the settlement cases or income tax matters or matters relating to the anti-corruption department.

Whether the president can give a go ahead for supplementing the information before going for the inquiry, Justice Shah asked.

The counsel argued that the complaint by Dogar, along with the material, could have been placed before the President, then under Article 209 of the constitution, the inquiry could have been done only by SJC.

Justice Shah said the counsel was trying to establish that after receiving the complaint from Dogar, the president should have verified first by asking for more information from the complainant, since he had to form opinion before referring the matter to SJC for inquiry.

“I could not have said it better,” Munir Malik replied, adding that the ARU chairman should have been authorised first to conduct the investigation.

Justice Yahya Afridi also asked how the President can be restricted from making his opinion in a particular case.

The counsel argued that the president and the SJC stand on different pedestals in respect of inquiry into the complaint, but the ARU chairman cannot make an opinion in this regard. To illustrate, he said suppose Dogar had sent the complaint to the SHO of Kohsar police station.

Could the SHO, by assuming that the material qualifies to become a presidential reference, have asked Nadra or FBR to furnish a certain piece of information.

“The answer is no and on the same footing, the ARU chairman cannot ask FBR or Nadra for personal information,” the counsel contended.

When Justice Bandial observed that the material had gone to the law minister, Munir Malik contended that the business of collecting material does not fall within the domain of the law minister.

Published in Dawn, December 3rd, 2019