ISLAMABAD: Justice Yahya Afridi has cautioned Prime Minister Imran Khan that retaining “delinquents” like Law Minister Dr Farogh Naseem and Asset Recovery Unit (ARU) chairman Shahzad Akbar in important positions of authority would belie the most elementary principles of good governance and expose the PM’s complicity with them.

Section 216 of the Income Tax Ordinance (ITO) 2001 was blatantly breached in the case of Mrs Sarina Isa — the wife of Justice Qazi Faez Isa — on the unlawful directions of the ARU chairman with the concurrence of the law minister. Thus, they breached the statutory confidentiality of Mrs Isa’s tax returns, observed Justice Afridi in his separate note accompanying the Supreme Court’s detailed verdict issued in the Justice Isa case on Saturday following its April 26, 2021 short order.

Justice Afridi was part of a 10-member Supreme Court bench that overturned its June 19, 2020 majority order in the Justice Isa case that required verification of and a subsequent inquiry by the tax authorities into three foreign properties in the name of the wife and children of Justice Isa.

Section 216 of the ITO ensures confidentiality and makes it clear that if officers other than those from the income tax department access a taxpayer’s records, it will constitute a criminal offence.

Recently, the government through the controversial Finance (Supplementary) Bill 2021 amended the ITO allegedly to protect top elected functionaries from any criminal prosecution for disclosing personal tax information of Justice Isa and his wife. The amendment also empowers the government functionaries and officials to take decisions in future against any high-level public officials, public servants, their spouses and children or benamidars.

In his note, Justice Afridi observed that the SC could not pass any direction that, in essence, would preempt the Supreme Judicial Council (SJC) to proceed in a certain manner or refrain it from proceeding in any manner, as it would amount to judicial intervention in the proceedings before the council and offend the express mandate of Article 211 of the Constitution, which debars from calling in question before the courts any proceedings before SJC unless the very “proceedings” were determined to be coram non judice, mala fide or without jurisdiction.

Moreover, the directions by the SC to the SJC to consider the report of the tax officials amounts to judicial interference in the proceedings before the council and thus violates the autonomy and supremacy of the proceedings of the council against judicial interference envisaged under Article 211 of the Constitution, Justice Afridi further states.

But, the SJC on its own motion is competent to consider or refuse to consider information received from any source, be it the report of tax officials, to determine whether to inquire or not inquire into the conduct of the petitioner judge (Justice Isa).

These directions to the tax officials to inquire into the affairs of the spouse and children of Justice Isa and setting out the manner and the timeframe in which they should proceed, violate and are alien to the ITO.

The judge observed that the president and the SJC, however, have the authority and are free to proceed against any judge of the superior judiciary, including Justice Isa, over alleged misconduct in accordance with Article 209 of the Constitution.

Section 216 of the ITO commands confidentiality of the information of a tax filer and any breach exposes the delinquent to penal consequences, Justice Afridi observed, adding that such consequences are attracted in the present case to those giving the unlawful directions, namely Mirza Shahzad Akbar with the concurrence of the law minister, the tax officials executing the unlawful directions in breach of Section 216 of the ITO and the prime minister, who despite clear and unanimous finding of misdoings of the named delinquents by the apex court, retained them in positions of authority.

The judge, however, observed that Justice Isa or any other serving judge lacks the locus standi to invoke the original jurisdiction of the apex court under Article 184(3), as well as the review jurisdiction, as their right to invoke the same stands eclipsed till they hold the office of a judge of the superior judiciary, essentially to avert a position where their conduct may be seen as unbecoming of a judge, as ordained in the code of conduct issued by the Council for Judges.

Published in Dawn, January 30th, 2022