SC judge for criminal proceedings against law minister

In his dissenting note, Justice Afridi has given a detailed reasoning as to why he reached such conclusions

ISLAMABAD:

The long-awaited detailed judgment in the Justice Qazi Faez Isa case was finally delivered on Friday with Justice Yahya Afridi’s dissenting note surprising many as it recommended criminal proceedings against Law Minister Farogh Naseem and Assets Recovery Unit (ARU) Chairman Mirza Shahzad Akbar, among others.

In a 24-page judgment, Justice Afridi also declared that President Arif Alvi failed to discharge his constitutional obligations as ordained under Article 209(5) of the Constitution by showing blatant and uncalled-for obedience to the “advice” of the prime minister for filing the reference against a sitting judge of the apex court.

In his dissenting note, Justice Afridi, who had earlier dismissed Justice Isa’s petition but allowed superior bars petitions against the presidential reference, has given a detailed reasoning as to why he reached such conclusions and for what reasons the law minister and others have exposed themselves to criminal proceedings.

“The direction of the law minister and the ARU chairman to solicit, obtain and receive confidential information regarding the income tax returns of Justice Isa and Mrs Sarina Isa, prima facie, exposes them to criminal prosecution for having committed an offence under Section 199 read with sections 198 and 216(1) of the Ordinance,” Justice Afridi stated in the judgment.

Subsequently, Justie Yahya has directed the incumbent Federal Board of Revenue (FBR) chairman to ensure that the entire record of the present case is placed before the FBR “to proceed under the law, against the law minister, the ARU chairman, the then FBR chairman and all the concerned income tax officers qua their role in ordering to inquire into, solicit, disclose and receive confidential information relating to the income tax returns of Justice Isa and Mrs Isa”.

Similarly, the top court’s judge continued, the fact that the then FBR chairman and the income tax officials having not refused the illegal directions of the law minister and ARU chairman, and passing on confidential information to them, prima facie, exposes them not only to departmental action but also to penal consequences under Section 198 read with Section 216(1) of the Income Tax Ordinance, 2001.

Ensuring that the matter does not remain pending for long, Justice Afridi has sought a compliance report of the above action of the FBR to be submitted by the incumbent FBR chairman under his signature to the registrar of the Supreme Court not later than 15 days from receipt of the judgment.

Leaving nothing to imagination, Justice Afridi has made it clear that “no constitutional immunity from prosecution would be available to the law minister or any other federal minister for issuing directions to obtain legally confidential information, and that too in the face of the said direction to an officer of the government to commit an offence under the ordinance.”

He said that it was further vehemently asserted that the law minister was immune from criminal prosecution under Article 248 of the Constitution.

The judge has stated that the law minister and the ARU chairman lacked the mandate to initiate an inquiry against a sitting judge of the Supreme Court, as the legal domain to do so rests solely with the Supreme Judicial Council, and none other.

Declaring his fellow judge’s petitions not maintainable, Justice Afridi has accepted the constitutional challenge made by the petitioners representing the entire lawyers' community of the country. “[They] have been able to successfully establish that the worthy president grossly failed to exercise his discretion as mandated under the Constitution and, thus, the entire process built thereon leading to the filing of the reference was in violation of the law and the Constitution,” he declared.

“I hold that the worthy president has grossly failed to discharge his constitutional obligations as ordained under Article 209(5) of the Constitution,” his dissenting note reads, adding that the formation of the “opinion” by the president was, it seems, muddied by the blatant and uncalled for obedience to the “advice” of the prime minister.

In the judgment, he stated that the income tax officials proceed unlawfully by disclosing confidential information to unauthorised persons, noting that the chain of directions emanated from the law minister. He, subsequently, stated that all persons at different rungs of the governmental hierarchy, who were part of this unlawful disclosure of confidential information, have exposed themselves to penal prosecution.

Meanwhile, he avoided passing a definite finding on the legal status of the ARU, saying it would be unnecessary, if not legally incorrect.

On Abdul Waheed Dogar’s complaint, Justice Afridi described him a “proxy of disgruntled elements in the ruling establishment”. Noting his lack of standing as a journalist, he said that his complaint was obtained by surveillance by the intelligence agencies on the directions of the federal government.

The minority judgment reads that the accountability of judges is and shall remain the “essential lifeblood for a democratically vibrant society” as lawful and transparent accountability of judges would further bolster the independence of the judiciary, boast public trust, and thus, promote the rule of law in the country. “And to consider otherwise would be to accede to judicial autocracy,” he concluded.