-SC terms Presidential reference as invalid
-FBR to probe spouse under Tax laws
By Shakeel Ahmed
ISLAMABAD: The Supreme Court on Friday threw out the presidential reference against Justice Qazi Faez Isa, terming it “invalid”.
“[The reference] is declared to be of no legal effect whatsoever and stands quashed,” read the judgement. The top court, accepting Justice Isa’s petitions seeking the reference’s dismissal, also withdrew a show cause notice issued to Justice Isa.
The show cause notice was issued by the Supreme Judicial Council (SJC) to Justice Isa in July of last year for “writing letters to President Arif Alvi” after the presidential reference was filed against him.
The judgement was announced by Justice Umar Ata Bandial, who was heading the 10-judge bench hearing the case.
The short order directed that the Inland Revenue Commissioner send a notice to the judge’s wife and children within seven days, asking them to give explanations about the nature and source of funding for three properties in their names in the United Kingdom.
The commissioner will complete the investigation within 60 days and issue an order within 15 days of the investigation’s conclusion. The Federal Board of Revenue (FBR) has also been directed to submit a report to the SC registrar within seven days of the commissioner’s order. The registrar will then present the report to the chairman of the SJC (the chief justice of Pakistan) who will decide when to present it in the council.
Three of the 10 judges wrote additional notes. Justice Maqbool Baqir and Justice Mansoor Ali Shah wrote in the judgement that “one of the pivotal constitutional values” is that the judiciary’s independence be fully secured. However, they added that neither the petitioner judge nor any other judge, individual or institution were above the law.Justice Yahya Afridi, however, wrote that he found the petition “non-maintainable”. All three judges also opposed the decision to send the case to the FBR.
Munir A Malik, counsel for Justice Isa, while speaking to the media outside the SC said that “all of their arguments were accepted by the court including malafide intention, prematurity and lack of evidence”.
“The Assets Recovery Unit (ARU) cannot be accepted as a legal department as it was not constituted on legal grounds,” he added.
President of the Supreme Court Bar Association Hafiz Abdur Rehman Ansari in a statement “highly appreciated” the top court’s verdict and commended it for “its courageous demonstration guarding its independence [and] thus upholding the prime objective of the rule of law and supremacy of the Constitution”.
Vice chairman of the Pakistan Bar Council (PBC) Abid Saqi said that the SC verdict had “frustrated the nefarious and ill-motivated move of the government to subdue and pressurise the independent judiciary”.
The PBC also announced that all bar members will observe Youm-e-Tashakkur (day of gratefulness) on June 22. They will also celebrate what the council termed a “landmark judgement and the victory of the cause of the rule of law, the constitutionalism and independence of the judiciary”.
‘President did not form independent opinion before filing reference’
The reference filed against Justice Isa — in line to become the chief justice on September 18, 2023, for 13 months — by the government in May last year alleged that he acquired three properties in London on lease in the name of his wife and children between 2011 and 2015, but did not disclose them in his wealth returns. Justice Isa contested the allegation, saying he is not a beneficial owner of the flats — neither directly nor indirectly.
Through his petition, Justice Isa pleaded before the Supreme Court the the powers that be wanted to remove him from his constitutional office by hook or by crook. President Arif Alvi, he claimed, did not form his own independent opinion before the filing of the reference against him. The prime minister, the law minister and the attorney general misinterpreted Section 116 (b) of the Income Tax Ordinance, 2001, and mistakenly applied it to his wife and children as the law was applicable only to a dependent wife and those children who were minor and dependent, Justice Isa said.
The petition also claimed that government agencies including the FIA secretly obtained information about the petitioner and his family in clear transgression of Articles 4 and 14 of the Constitution since the petitioner and his family were neither taken into confidence over these investigations nor were they provided a single opportunity to respond to any purported discrepancy.
Justice Isa also asked the apex court to declare that the Asset Recovery Unit (ARU) constituted by the government to investigate his family’s properties was illegal and working without any legal effect and any of the actions taken by the unit with regard to the reference against the petitioner judge and his family were thereby illegal and of no legal effect.
Appearing in the court today, the government’s counsel, Dr Farogh Naseem, who resigned as the federal law minister to appear before the court in this case, submitted a reply from the Federal Board of Revenue (FBR) about Mrs Isa’s complaint that she had disclosed properties in her tax returns for 2018-2019 but the FBR had still issued her a notice.
Justice Umar Ata Bandial who was heading a ten-judge full bench hearing the case said that the judge’s wife had brought all documents pertaining to the properties on record and the government would verify them.
Munir Malik, counsel for Justice Isa, said he could “not understand” what the government’s case was about. Referring to Naseem’s argument about a similar case of a judge in Gibraltar, Malik said in that case the judge had associated himself with his wife’s properties while Justice Isa had not done the same. He argued that the government had come to the Supreme Judicial Council (SJC) instead of going to the FBR, adding that Justice Isa had “never interfered” in the tax body’s workings.
