Minority verdict seeks Justice Isa coming clean before SJC

Judgment was authored by CJ Bandial and endorsed by three other SC judges

ISLAMABAD:

The Supreme Court’s minority judgment, authored by Chief Justice of Pakistan Umar Ata Bandial in the Justice Qazi Faez Isa case, read that there was material that called for an explanation before the Supreme Judicial Council (SJC) which must be provided by the judge to protect him and the court from aspersions cast on their integrity regarding the purchase of foreign properties by his family members.

"We must not falter in the face of such a powerful command. Judges, like all other persons in the service of Pakistan and holding public office, are answerable for their errors and omissions. In the instant case there is material that calls for an explanation before the SJC which must be provided to protect the learned petitioner and the Court from aspersions cast on their integrity,” read an 86-page judgment authored by Chief Justice Bandial.

Justice Sajjad Ali Shah, Justice Munib Akhtar and Qazi Muhammad Amin Ahmed had endorsed his view.

The judgment also questioned the majority judges for forwarding their judgment to the retiring judge, Justice Manzoor Ahmad Malik, to obtain his signature.

"I have noted with concern one aspect of the four-member judgment. It is that that decision has (and I say this with all due respect) purported to be signed also by our learned former colleague Justice (retd) Manzoor Ahmad Malik, who has expressed his agreement with the same,” says the additional note authored by Justice Munib Akhtar and endorsed by three minority judges -- Chief Justice of Pakistan Umar Ata Bandial, Justice Sajjad Ali Shah and Justice Qazi Muhammad Amin Ahmed.

“Our learned former colleague was of course a signatory to one of the short orders but he retired on 30.04.2021, i.e., several months ago. He could not, as a matter of law, have signed the judgment,” the additional note added.

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However, the majority judgment, issued on January 29, had accepted the review petitions of Justice Isa and his wife with a majority decision of 6:4 against the June 19, 2020 order, wherein the Federal Board of Revenue (FBR) was directed to conduct an inquiry into the foreign properties of the Supreme Court judge's family members.

The minority judgment read that by accepting the review petitions and seeking to prevent a consideration of the freshly discovered relevant and genuine information, the review majority had created an anomalous situation, whereby a process of this court in aid of justice had been turned into a process “shrouding the truth under legal niceties”.

It added that an unsatisfactory state of affairs existed that unless explained casted an impression that the court had adopted a different standard for one of its own.

“Judges occupy an exalted position in society as dispensers of justice. They are amongst the elites in society. Therefore, neglecting their duty to search and confront the truth goes against the express command of Almighty Allah who has warned against providing preferential treatment to privileged persons,” the minority judgment read.

Justice Bandial further wrote that it according to Mrs. Isa’s version, the funds that were credited to her foreign currency account could only have contributed towards the acquisition of two of the London properties in the year 2013 after Justice Isa assumed public office.

"The foregoing facts prima facie suggest that in relation to the Foreign Currency Account, the learned petitioner [Justice Isa] at the very least knew the material facts at all relevant times. That he maybe even had a link with the funds that went into it. Therefore, a discrepancy now exists between the new information (which indicates the connection of the learned petitioner with the London properties) and the stance of the learned petitioner (that he has no link whatsoever with the funding of the London properties). These are quite obviously tentative observations and queries in view of what has come to light. They require a clear response or answer before the competent forum. If the matter had been left to the SJC to deal with at its own discretion in terms of the Short Order dated 19.06.2020 then perhaps the controversy could have been resolved.”

Justice Bandial further wrote that as Mrs. Isa and her children were admittedly the owners of the London properties, the pivotal issue in the present matter had always been the source of funds used for purchasing these properties.

“Mrs. Isa has explained to CIR, Islamabad that the requisite funds were transferred to the UK from her Foreign Currency Account. The Procuration and Delegation of Authority Form in favour of the learned petitioner confers several powers on him giving him access and authority to issue directions regarding movement of funds in the Account. Further, his former partner deposited a large sum of £125,000 in the said account. It is to be noted that the learned petitioner took oath as Chief Justice of the Balochistan High Court on 05.08.2009. The bulk of the funds, £100,000, were transferred into the Foreign Currency Account by the learned petitioner’s former partner barely a month later, vide cheque deposited on 03.09.2009. Clearly, the learned petitioner had to exit the partnership firm on his assuming public office. Now, when a partner leaves a firm there is a settling of accounts and the outgoing partner has to be given his due from the firm’s capital etc.”

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The minority judgment questioned as to was this payment into Mrs. Isa’s account in substance part of that settlement or was it a payment for some bona fide arm’s length transaction between the former partner and Mrs. Isa.

“Either way, it prima facie stretches credulity that the learned petitioner would not be aware of or linked to such a transaction. The other payment, of £25,000 was made vide cheque drawn on 11.04.2008, when the learned petitioner was a partner at the firm. The question, prima facie, of knowledge if not linkage arises again with regard to this deposit."