SC quashes presidential reference against Justice Isa

Majority verdict directs FBR to initiate proceedings against judge’s family under tax laws

ISLAMABAD: The Supreme Court has quashed a presidential reference filed against Justice Qazi Faez Isa as well as the Supreme Judicial Council (SJC) proceedings that were started on the basis of the reference.

“Reference No 1 of 2019 is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the SJC against the petitioner [Justice Isa] including the show-cause notice dated 17.07.2019 issued to him stand abated,” said a short order issued on Friday.

A ten-judge full court issued the verdict after hearing for over six months a slew of petitions filed against the reference that claimed that Justice Isa had committed misconduct by not disclosing his family members properties in the United Kingdom in his wealth statement.

The bench issued the verdict a day after the judge’s spouse, Sarina Isa, appeared in the court through video link and explained how she bought the properties which, she said, were equal in worth of a one kanal plot in some posh locality of Islamabad or Karachi.

In the split verdict, announced by the presiding judge Umar Ata Bandial on Friday morning, seven out of the ten judges referred the matter to the Federal Board of Revenue (FBR) for initiating tax proceedings against Justice Isa’s spouse and children for not disclosing their UK properties to the tax authorities while filing their returns.

However, three judges, while quashing the reference, did not endorse the majority view: referring the matter to the FBR. Out of the three judges, Justice Yahya Afridi dismissed Justice Isa’s petition but allowed superior bars petitions against the reference.

Interestingly, neither the majority nor the minority order mentioned any reason for quashing the reference -- the second reference against an apex court judge to be quashed.

Earlier, on July 20, 2007, a 13-judge full court quashed a reference filed against former chief justice Iftikhar Chaudhry.

After the announcement of the verdict, the legal fraternity hailed the verdict as the victory of justice. Both the Pakistan Bar Council (PBC) and the Supreme Court Bar Association (SCBA) described it as a historic judgment and announced to mark June 22 as a day for thanksgiving.

Justice Umar Ata Bandial, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed were the judges who referred the matter to the FBR.

The majority verdict

The judges directed that the concerned commissioner of Inland Revenue shall himself [and not some other officer exercising delegated powers] issue within 7 days of the order appropriate notices under the Income Tax Ordinance, 2001 to the spouse and children of Justice Isa.

The notices will seek from them an explanation regarding the nature and source of the funds from which the UK properties were purchased

The order said the commissioner Inland Revenue having jurisdiction over the spouse of Justice Isa shall be deemed also to be the commissioner having jurisdiction over the children. The commissioner must be a commissioner exercising jurisdiction and performing functions in Islamabad.

“Any notices issued or proceedings taken (or proposed to be issued or taken) under the 2001 Ordinance in relation to any of the respondents in respect, or on account, of the properties aforesaid prior to the date of this order stand terminated forthwith”.

The order said the notices shall be served at the official residence of the petitioner in Islamabad through courier service and such other means as may be considered appropriate and shall be deemed served on the respondents when received at the said address.

The court said the spouse and children shall furnish their replies to the notices along with such material and record as is deemed appropriate.

In case any of them is outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non-availability of such person in Pakistan.

Upon receipt of the replies (and of such additional material/record as may be filed in response to such clarification or explanation, if any, as the commissioner may, in writing, have sought), the commissioner shall give an opportunity of hearing to the respondents in person or through an authorized representative/counsel and shall thereupon make an order in accordance with the 2001 Ordinance.

The order noted that the proceedings shall be concluded before the commissioner within 60 days of the date of receipt of the notices and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given.

Within 7 days of the issuance of the order by the commissioner, the FBR chairman shall submit a report (to be personally signed by him) to the Supreme Judicial Council (SJC) through its secretary regarding the proceedings, appending thereto the entire record of the said proceedings.

“The secretary shall forthwith place such report before the chairman of the council – the Chief Justice of Pakistan – who shall, in such manner as is deemed appropriate, have the report laid before the council for such perusal, consideration, action, order or proceedings as the council may determine.

The receipt of the report, the laying of it before the council and the action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the council thereon shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the SJC’s suo motu jurisdiction.

The order said if, within 100 days from the date of this order, no report as is received by the secretary from the FBR chairman, he shall inform the SJC chairman accordingly and shall, if so directed by him, write to the FBR chairman, requiring an explanation as to why the report has not been received.

If in reply the report is filed, then the matter shall proceed. If a reply is received without the report or no reply is received, then the secretary shall bring such fact to the attention of the SJC chairman who may direct that the matter be placed before the council for perusal, consideration, action, order or proceedings in relation to the petitioner or any other person.

“The action/proceedings, if any, or orders or directions, if any, as may be taken, made or given by the council shall be deemed, for purposes of Article 209 of the Constitution, to be in exercise of the suo moto jurisdiction as is conferred by that Article on the council.”

Without prejudice to the foregoing, if at any stage the report is received from the FBR chairman, then the matter shall in any case proceed (or be deemed to proceed, as the case may be).

The court clarified that any of the proceedings under the 2001 Ordinance as herein contemplated on the one hand, and before the council on the other, are distinct and separate from each other.

Accordingly, nothing contained in this order shall affect or prejudice the right(s) of appeal of any of the respondents under the 2001 Ordinance, if they feel aggrieved by the order made by the commissioner or any order made or decision taken at any appellate stage.

“Any such appeal(s) shall be decided on the merits, in accordance with the 2001 Ordinance. At the same time, the consideration by the council of any matter placed before it under either shall not be affected by the filing or pendency of any appeal as aforesaid.

But the council may, if it deems appropriate, notice such appellate proceedings or orders/decisions and may (for purposes only of the matter before it) make such orders or give such directions in relation thereto as it deems appropriate.”

The minority judgment

Three judges in the minority judgment said one of the outcomes of such declaration is that the reference filed by the President of Pakistan against Justice Qazi Faez Isa is quashed, and as a result the proceedings along with the show cause Notice issued by the SJC stand abated.

“One of our pivotal constitutional values is that the independence of judiciary shall be fully secured. The same constitution also ordains that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.

“Therefore, it is reiterated that in our constitutional democracy, neither the petitioner judge, nor any other judge, or any individual or any institution, is above the law. The doors of the constitutional forum – the SJC – are always open, either on its own motion or for anyone who has a genuine and a bonafide grievance, amenable to the jurisdiction of the council against a judge.

“It is equally important, that a judge like any other citizen of Pakistan enjoys the inalienable constitutional right to be treated in accordance with law.

“These fundamental values are to be protected at all cost in order to uphold the majesty and supremacy of the Constitution and to honour the people of Pakistan who have adopted and given to themselves this Constitution,” they noted.