The Supreme Court on Saturday noted that if officers of the federal or provincial governments were allowed to file complaints concerning or emanating from their official actions against the judges of the constitutional courts who, in exercise of their constitutional jurisdiction, make judicial review of official actions and inactions of such officers, there would be “disastrous consequences” for independence of the judiciary.
“This crucial aspect could not be noticed at the time of making the impugned directions, and it vitiates that direction of the Court being against the very fundamental right of the public for which enforcement this Court entertained the constitution petitions in the present matter, i.e., the independence of judiciary," read a 45-page detailed majority judgment in the review petitions filed by Justice Qazi Faez Isa, his wife and others.
The verdict was authored by Justice Maqbool Baqar, Justice Mazhar Alam Miankhel, Justice Syed Mansoor Ali Shah and Justice Aminuddin Khan.
The judgment accepted the review petitions of Justice Isa and his wife with a majority decision of 6:4 against the June 19 order, wherein the Federal Board of Revenue (FBR) was directed to conduct an inquiry into the foreign properties of the Supreme Court judge and his family members.
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The top court conceded that its decision to have the FBR conduct the inquiry was a mistake.
It noted that Justice Qazi Faez Isa’s wife, Serena Isa, was not given a “fair and meaningful hearing” and the bench felt constrained to observe that she could not be deprived of her constitutional right to deal with in accordance with law merely because she was the spouse of a judge.
The detailed judgment also read that the Supreme Court had observed that judges must obviate any attempt to damage the judiciary now.
"Unfortunately our chequered history has seen numerous attempts to trample upon judicial independence during both, civilian as well as military governments. Nonetheless, we must not become prisoner of our past and must now obviate any attempt to damage the judiciary,”
The court noted: "This judgment must announce loud and clear that no one, including a judge of the highest court in the land, is above the law. At the same time, no one, including a Judge of the highest court in the land, can be denied his right to be dealt with in accordance with law. Every citizen of Pakistan, notwithstanding his status or position, is entitled to due process of law in any action detrimental to his life, liberty, body, reputation or property under Article 4 of the Constitution and safeguarding of his fundamental rights guaranteed under Articles 9 to 28 of the Constitution.”
In the case of Serena, the Supreme Court observed: “The question that needs consideration, in the present case, however is whether the Court can issue any direction, order or decree against a person, under this Article, in contravention of provisions of some law. After deep deliberation, we find that the Court cannot do so.”
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It added that the main reason for the reaching this conclusion was that as per Article 4 of the Constitution, to enjoy the protection of law and to be treated in accordance with law was the inalienable right of every person, and no action detrimental to the life, liberty, body, reputation or property of any person could be taken except in accordance with law.
“The right to be dealt with in accordance with law assured by Article 4 of the Constitution stands at a high pedestal and even outshines fundamental rights guaranteed by Articles 9 to 28 of the Constitution, as this right cannot be suspended during the proclamation and imposition of Emergency under Article 233 of the Constitution. Article 4 of the Constitution is the bedrock of the rule of law, and antithesis to the rule of men, in our country.”
The court further observed that Justice Isa could not be held liable to account for alleged tax evasion, if any, by his independent spouse, under any law of the land or under any clause in the Code of Conduct prescribed for the judges of superior courts.
“This Court could not have issued any direction to the Council to exercise its suo motu jurisdiction.”
Justice Yahya Afridi in his additional note wrote that section 216 of the Income Tax Ordinance, 2001, commanded confidentiality of the information of a tax filer, and breach thereof exposed the delinquent to penal consequences under sections 198 and 199 of the Ordinance.
He added that Prime Minister Imran Khan, Law Minister Dr Farogh Naseem, ARU Chairman Mirza Shahzad Akbar and tax officials were liable to penal consequences of violating section 216 of Income Tax Ordinance 2001.
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