ISLAMABAD: Justice Maqbool Baqar of the Supreme Court has held Prime Minister Imran Khan, Law Minister Dr Farogh Naseem and Assets Recovery Unit (ARU) Chairman Mirza Shahzad Akbar liable under the Income Tax Ordinance (ITO) 2001 as well as the Nadra Ordinance for the institution in haste of the presidential reference against Justice Qazi Faez Isa.

The prime minister is also liable to send the purported advice to President Arif Alvi for filing the reference against Justice Isa which in the facts and circumstances was infected with malice, Justice Baqar said in his 66-page dissenting note issued on Wednesday.

Dr Firdous Ashiq Awan, the prime minister’s former special assistant on information, is liable for contempt of court for her uncalled-for and disrespectful comments made at a press conference, Justice Baqar observed.

On June 19, the Supreme Court had through a short order quashed the presidential reference to wash away the stigma of misconduct against Justice Isa over non-declaration of three offshore properties in the name of his wife and children. The court had on Oct 23 issued majority detailed reasons, along with a dissenting note by Justice Yayha Afridi.

Justice Baqar observed that if the interpretation in the presidential reference against Justice Isa was accepted then every taxpayer, including judges, the prime minister and the president, had to disclose each and every asset of his/her spouse and children in their wealth statements.

Justice Baqar holds Firdous also liable for her uncalled-for, disrespectful comments

“This would throw almost every taxpayer in breach of Section 116(2) of the Income Tax Ordinance (ITO) to the extent that the wife owns any property including jewellery that has not been created out of the husband’s income or that the husband is unaware of,” observed Justice Baqar.

Justice Baqar observed that such interpretation would also throw most married female tax filers to be in breach of section 116, as most wives do not have details of the assets of their husbands and don’t report their husband’s assets on their wealth statements.

“Thus the interpretation accorded in the reference makes no sense in view of the purpose of inclusion of requirement of wealth statement under the law. The only purpose a wealth statement serves is to act as a balance sheet for reconciliation of income to ensure no income escapes tax,” he observed, adding that petitioner judge Justice Isa could not possibly have disclosed/declared the assets of his non-dependent spouse and non-dependent adult children under section 116(2) or even under section 116(1) unless the assets were a product of his income.

And if he did disclose such assets he would be filing a false return, Justice Baqar said, adding that the law cannot possibly require both spouses to declare identical assets on their wealth statements as in doing so their wealth statements would never reconcile with their incomes. Section 116 of the ITO cannot be conceived to have proposed such an absurdity, he said.

The purpose of law is to add certainty to the lives of citizens, Justice Baqar emphasised, adding that the proposed interpretation of section 116 of the ITO was intentionally dishonest as it suffers from an impossibility. “Legal liability cannot be affixed on the basis of fanciful misconstruction and uncertainty. It would be rare for one spouse to know with exactitude the details of all assets of the other spouse, and be virtually impossible where a husband has more than one wife,” he added.

Justice Baqar pointed out that a very serious constitutional abrasion in this case was the president’s purported reference sent to the Supreme Judicial Council (SJC) on the advice of the prime minister, without forming an independent opinion and thus committing a gross violation of the Constitution.

There is absolutely no concept of any “advice” in the constitutional scheme of initiating and maintaining any proceedings against a judge. Article 209(5) of the Constitution recognises the role of only two offices/entities — the president and the SJC. The prime minister has absolutely no role or participation in the entire process and the term “advice” is alien to the proceedings under Article 209.

Despite the fact that the SJC has been empowered to receive information “from any source”, the president has been retained to act as a buffer and insulate the judiciary from the executive’s onslaught, by way of misconceived, untenable, malicious and mala fide complaints/allegations, Justice Baqar observed, explaining that the government happens to be party in a vast majority of cases and tension between these two organs of the state is not unnatural.

Justice Baqar said both the ARU and its chairman do not owe their existence to any law and both are non-entities, adding that all of their acts are wholly without jurisdiction.

Justice Baqar also dealt with the allegations regarding the way material was collected against the petitioner judge through covert surveillance and observed that despite the fact that the ARU chairman was bereft of any legal status and had absolutely no power or authority to collect such material, the chairman misused his so-called office and did so at his whims. He observed that the state had no business to pry upon or collect personal information about its citizens, unless there was a just cause and legitimate purpose for doing so.

Even the prime minister cannot ask an income tax officer/commissioner to provide tax returns of any person unless the request falls within the four corners of one of the exceptions to section 216, Justice Baqar said, adding that obviously ARU chairman does not enjoy a better position.

Referring to the sending of the matter to the FBR for initiating proceedings against the judge’s wife and children and then submitting a report to the SJC, Justice Baqar observed that when the court unanimously quashed the reference and, as a result, declared the proceedings and the show-cause notice abated, there was absolutely no justification for these guidelines which were beyond the scope of the petition.

Published in Dawn, November 5th, 2020