• Detailed judgement regrets ‘disregard of law’ by govt in framing reference
• Notes president’s failure to form considered opinion after receiving ‘inadmissible advice’ from architects of reference
• Firdous to face contempt proceedings for remarks against judge

ISLAMABAD: The Supreme Court held on Friday that President Arif Alvi did not form a considered opinion under Article 209(5) of the Constitution and therefore the presidential reference against Justice Qazi Faez Isa ‘suffered with multiple defects’.

And since there was no valid authorisation for the investigation, the respondents illegally accessed the tax records of Justice Isa, observed Justice Umar Ata Bandial in a 174-page majority judgement he has authored.

Justice Bandial, who headed a 10-judge full court hearing a set of petitions challenging the filing of the presidential reference against Justice Isa, also observed that there was no authorisation for investigating the affairs of Justice Isa by the president and Prime Minister Imran Khan, instead the authorisation of Law Minister Dr Farogh Nasim was obtained.

On June 19, the Supreme Court through a short order had quashed the presidential reference to wash away the stigma of misconduct on Justice Isa over non-declaration of three offshore properties in the name of his wife and children.

The detailed judgement said that the show cause notice to Justice Isa by the Supreme Judicial Council (SJC), except for seeking information about Mrs Isa’s ownership of the undeclared London properties, and the remaining contents of the reference were without foundation.

Accordingly, the narrative in the notice alleging misconduct by the judge and the subsequent direction to him to file a response had lost force and could not be sustained, Justice Bandial observed, adding that the notice could not survive in limbo and must abate.

The judgement also has some flak for the former attorney general (AG) Anwar Mansoor for the strong language in his written rejoinder to the judge’s preliminary response filed before the SJC.

“We would like to record our disapproval of the language used by AG for a judge of the Supreme Court,” Justice Bandial said, adding that since the brazen language was used in the rejoinder and not the reference, it did not form part of the record before the president. As a result, it did not influence the president’s decision to forward the reference to the SJC for inquiry and therefore, being subsequent to the preparation of the reference and its summary, the AG’s remarks could not be said to reveal malice in the filing of the reference, Justice Bandial explained.

He also regretted that former information minister Dr Firdaus Ashiq Awan made contemptuous remarks about Justice Isa in public through a press conference and said an independent contempt proceeding would be initiated against her separately.

About the creation of the Asset Recovery Unit (ARU), the majority judgement declared that there was neither any fatal defect in the creation of the ARU nor was there any unlawfulness in the appointment of Mirza Shahzad Akbar as the special assistant to the prime minister on accountability.

On the covert surveillance of the judges, the majority judgement said the counsel for Justice Isa failed to produce any evidence to demonstrate that either (activities of) his client or his family had been monitored or their communications intercepted.

The judgement however explained that though it was correct to hold that there had been unlawful surveillance and a violation of Article 14(1) of the Constitution in the Benazir Bhutto case, giving the same ruling on the facts of the present case would amount to stretching beyond its ambit.

Finding holes in the reference, Justice Bandial also observed that no notice was issued to Mrs Isa as required under Section 116(1) of the Income Tax Ordinance (ITO) before the filing of the reference and Justice Isa was presumed to be under the obligation to declare the assets of his independent wife and adult children on the basis of an unsettled and disputed interpretation of Section 116(1)(b) of the ITO.

There was neither any evidence nor the nomination of a predicate offence in the reference to support the allegation of money laundering against the judge, Justice Bandial observed, adding that there was also no evidence that the petitioner had violated the regime under the Foreign Exchange Regulation Act.

Justice Bandial observed that the president had received inadmissible advice from the then AG and the law minister — the chief architects of the reference — on the strengths and weaknesses of the reference.

The president did not get considered, fair and objective advice from a third party on the questions of law noted in the reference and also failed to notice various legal and procedural defects in the reference, the judgement explained.

These illegal acts of the respondents (government) depicted their utter disregard of the law as filing of the reference under Article 209 of the Constitution that was signed by the president and which presented a charge sheet against the judge was a matter requiring utmost prudence and caution by its framers, Justice Bandial noted.

In the present case the actions of the respondents violated not only the express provisions of the constitution, the Rules of Business 1973, ITO and Anti Money Laundering Act but also ignored the law laid down in the 2010 Chief Justice Iftikhar Muhammad Chaudhry case, which specifically set out certain safeguards to protect Superior Court Judges from arbitrary actions of the executive, the judgement said.

Therefore, in essence, the respondents had paid scant attention to the mandate of the relevant laws governing the field of presidential references, Justice Bandial observed. Under these circumstances, the errors committed by them in the preparation and framing of the reference could not be termed as mere illegalities, instead, in the context of Article 209 their errors amounted to a “wanton disregard of the law”, he regretted.

Being arbitrary and illegal, these acts had ceased to be actions contemplated by any of the applicable laws such as the constitution and the ITO and thus, as a result, although the preparation and framing of the reference was not patently motivated with malice, the scale and degree of the illegalities were such that the reference was deemed to be tainted with mala fide in law and therefore quashed, the judgement noted.

It also explained why the June 19 short order had ordered the Federal Board of Revenue chairman to submit his report about the proceedings before the commissioner (inland revenue) to the SJC for its consideration. This was done to give the SJC the chance, if so wished, to commence proceedings against Justice Isa in exercise of its suo motu jurisdiction.

However, Justice Bandial reiterated that the short order merely issued a direction to the FBR chairman and in no way obliged the SJC to take any action based on the report.

The SJC may do so of its own volition if it considers that the report justifies any action against the petitioner judge but it may also file the report if it finds that the same contains no substance/merit.

Justice Bandial observed that the SJC was the only constitutional body which could examine the conduct of a superior court judge and the earlier direction for disclosure of the findings and the record of the verification proceedings by the FBR to the council acknowledged the latter’s exclusive jurisdiction in this matter.

Consequently, he said, the FBR chairman’s report was a piece of information to be evaluated by the SJC in its suo motu jurisdiction and at the same time the short order had preserved the rights of the affected taxpayers, Mrs Isa and her children, under the ITO. This includes the right to appeal against the decision of the commissioner or against any other adverse order passed at the appellate stage.

“To our minds, the two directions, namely, the filing of the report by the chairman FBR before the SJC and the protection of the affected persons right to appeal, issued by the court were necessary in the interests of justice,” the majority judgement said.

The jurisdiction of the FBR was concerned with taxing income whereas the jurisdiction of the SJC was related only with the misconduct of the judge, it said. Therefore, the proceedings and/or the outcome before one forum do not affect those of the other forum.

However, the SJC may, if so inclined in the exercise of its suo motu jurisdiction conferred by the constitution, take into consideration any proceedings before the tax authorities or orders passed by them.

Justice Bandial also explained that the short order’s direction to refer the matter to the FBR was primarily based on two grounds: to establish that judges of the superior court were answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution and to honour the petitioner’s plea that the allegation of absence of source of funds and money laundering must be first put to Mrs Isa who was an independent taxpayer.

Published in Dawn, October 24th, 2020