Two judges unveil dissenting notes in Justice Isa case

Respectively describe majority verdict as ‘anomalous’; reference as based on ‘mala fide of facts’

ISLAMABAD:

Justice Maqbool Baqar and Justice Mansoor Ali Shah – the remaining members of the apex court bench that quashed a presidential reference against Justice Qazi Faez Isa – have unveiled their dissenting notes, respectively describing the majority verdict as “anomalous” and the reference based on “mala fide of facts.”

A ten-judge bench, headed by Justice Umar Ata Bandial, on June 19 quashed the presidential reference that claimed that Justice Isa had committed misconduct by not disclosing his family members’ London properties and sought his removal.

In the split verdict, seven of the judges had, however, referred the matter to the Federal Board of Revenue (FBR) and asked the taxman to submit its report to the Supreme Judicial Council (SJC) which could resurrect the reference based on the report.

The seven judges who wrote the majority verdict issued their detailed order on October 23, describing the presidential reference as based on “mala fide of law.” 

Elaborating his reasons for disagreeing with the majority verdict, Justice Maqbool Baqar issued a 68-page dissenting note raising objections to referring the matter to the FBR.

"We, (myself, Mansoor Ali Shah and Yahya Afridi) have, however, not been able to persuade ourselves to agree with the part of the short order, as contained in paras 3 to 11 thereof, whereby directions have been issued to the FBR to issue notices and initiate proceedings against [Isa family],” he noted.

Justice Baqar said there is absolutely no justification for issuing directions and guidelines to the FBR and the directions are clearly beyond the scope of the petition allowed/disposed of through the short order.

"I found that the allegations against the petitioner were wholly unfounded, baseless, frivolous, misconceived and mala fide, and that the petitioner was right in claiming the reference to be a product of animosity, malice of law as well as of facts and that it streams from the ill-will harbored by some functionaries of the executive against the petitioner.”

He said the government commissioned its entire machinery to somehow ferret some excuse to proceed to dislodge Justice Isa and misused the government departments, and resources, in an unconstitutional and unlawful manner.

The judge said the government also conducted covert surveillance of the petitioner and his family but the official respondents were neither able to show any illegality or misconduct on the part of the petitioner – Justice Isa – nor could prove that his wife and children are his dependents.

“As discussed in detail earlier, neither any provision of the ITO [Income Tax Ordinance] 2001, nor of any other law, requires the petitioner to make the disclosure as was contended. There is no concept of any vicarious liability under the income tax law as was suggested by the respondents"

He said the properties having been acquired by Isa’s family in the tax years 2004 and 2013, and five years period of limitation prescribed by law for opening of the tax assessment with regard thereto having expired several years before, they cannot be lawfully required to furnish the source of funds for acquiring the said properties, or any income information for the said years.

“The assessments that have attained finality with the afflux of time cannot be ordered to be re-opened. The FBR’s reopening the same shall be in violation of the legal prohibition and disability. Such would also violate the vested rights of the wife and children.”

Justice Baqar said the majority order required Isa’s wife and children to do what the law does not oblige them to do, and instead prohibits the FBR from seeking information, the wife and children have been obligated to furnish. He said the obligations can only be rooted in law.

He said the majority order was passed against the persons who were neither before the court nor were they put to notice, as to why the FBR be not directed, as directed in terms of the order. He said no opportunity was provided to them to submit as to why the FBR be not so directed.

"The wife and children being private citizen, their tax matters have no nexus with the essential pre-requisite for invoking and maintaining any proceedings under Article 184(3), and were thus not amenable to the proceedings that were invoked thereunder, and disposed of through [June 19] order.

The judge said the role and jurisdiction of the SJC is limited to the matters relating to the conduct and capability of the superior court judges and the forum is not mandated to delve into the affairs of someone who is not a judge of a superior court.

“The [majority] order tends to stretch the scope of SJC beyond its mandated jurisdiction, it rather vests in the SJC the jurisdiction and authority not granted to it by the Constitution," said Justice Baqar.

He said the ITO 2001 also prohibits reopening of the tax assessment matters after expiry of a period of five years. “Through the short order, the wife and children of the petitioner have been obligated to furnish to the FBR information which have attained finality much earlier than the prescribed period.”

The judge noted that the order tends to create an anomalous situation, for it provides that the proceedings before the SJC shall not be affected by the filing or pendency of any appeal under ITO 2001 against the order/report of the FBR, or against any order made or decision taken at any appellate stage.

“[It will create an anomaly] as in the event the SJC, on the basis of the report submitted by the FBR, recommends removal of the petitioner, but subsequently the petitioner succeeds in his challenge to the [FBR] order, and the said report is found not sustainable, the time for the retrieval may have passed, as by then the petitioner may have reached the age of superannuation.

“Even otherwise the damage inflicted upon the petitioner, and suffered by this institution, shall be irretrievable. In a reverse scenario where the SJC may not agree with the findings of the FBR commissioner, but such findings are upheld by forums before which the commissioner, finding may be amenable to correction, an anomalous and embarrassing situation," said Justice Baqar.

Justice Shah’s dissenting note

Justice Syed Mansoor Ali Shah in his 65-page dissenting note observed that the presidential reference against Justice Qazi Faez Isa was tainted with both mala fide of law and mala fide of fact.

"The actions of entertainment of the complaint [against Justice Isa], the investigation and surveillance for the collection of evidence, the putting up of summary before the prime minister by the law minister and finally the approval of the summary by the PM and placing the ‘information’ before the president under Article 209(5) of the Constitution for removal of [Isa] are found to be tainted with both mala fide of law and mala fide of fact," he noted.

The SC judge said all the government actors are held responsible. However, as the buck stops with the PM in a constitutional parliamentary democracy, the major burden of these malicious actions falls on the shoulders of PM Imran Khan, “who also happens to be the leader of a political party”.

"If we start reading the events after the Faizabad dharna judgment [authored by Justice Isa], one is compelled to conclude that the judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power.”

The judge also referred to the review petitions filed against the Faizabad verdict in the apex court by a number of petitioners including the ruling PTI. In the Faizabad verdict, Justice Isa had highlighted the alleged role of intelligence agencies in creating political unrest in the country.

He said the vengeance and resentment against Justice Isa is more visible from the strange and unprecedented assertions made for his removal on the ground of misconduct in the review petitions.

“Soon it took shape of a vague complaint filed before an incompetent authority – the Assets Recovery United (ARU) – housed in the office of the prime minister," said Justice Shah.

He said the ARU collected evidence by violating the sphere of absolute privacy right of the petitioner judge and his family through surveillance, and without backing of any law for its authority to do so.

“Therefore, such evidence/material was liable to be excluded from consideration without any exception, and the law minister and prime minister could not have relied and acted upon it, for making the ‘summary’ and advising the president respectively," he said.

Justice Shah said any covert surveillance or interception of the citizens of Pakistan other than under the IFTA is starkly offensive to their fundamental rights of privacy and personal liberty.

Justice Shah said the ARU did not possess the resources or the technical capacity to carry out surveillance of the judge and the interception of their communications gives credence to the stance that the surveillance was carried out in connivance and in collaboration with the intelligence agencies.

“The possibility of such happening, therefore, cannot be ruled out in the absence of any other evidence to the contrary, on the record,” he noted.

Justice Shah said the establishment of the ARU was also absolutely without lawful authority.

"In the absence of any legal status of the ARU, its chairman and members also have no legal position or status. The appointment of the ARU chairman by the cabinet was without lawful authority, and is so declared,” he said.

He said: It is alarming to imagine how the complainant had come to know of the Spanish name of the spouse of the petitioner judge and how on earth he got the access to the address of that property whereas his complaint does not mention either.

The judge said the ARU chairman stated in his report that he met the complainant but did not mention in that report how the complainant had known the Spanish name of the spouse of the petitioner judge and got the address of that property.

“The federation took the stance during arguments that the complainant was a journalist and no journalist tells or can be compelled to tell the source of his information.

“The stance is misconceived; it has been taken without appreciating the fact that the complainant had not got published an investigative story in any newspaper, he had rather made a complaint for action against the judges of constitutional courts for their alleged misconduct.

“His status was that of a complainant, and not of a journalist, in making the complaint. It is no rocket science to put the facts together to discern that the complainant was fed the information to generate the complaint. “Whoever fed him the information are the real actors of this saga," he noted.

He directed the authorities to initiate criminal and disciplinary proceedings against the ARU chairman, legal expert and members as well as, other defaulting officials of the FBR and the National Database Registration Authority (NADRA) for their illegal acts, under the IFTA, ITO and NADRA Ordinance.