ISLAMABAD: The Supreme Court Friday quashed a presidential reference against Justice Qazi Faez Isa for allegedly not disclosing foreign properties in his wealth returns, but authorised the Federal Board of Revenue (FBR) to conduct inquiry into the allegations on the basis of which a final determination will be made whether to pursue a misconduct reference against the judge or not.
The court also halted the proceedings pending in the Supreme Judicial Council (SJC) against the judge as well as the show-cause notice issued to him on July 17, 2019.
A 10-member full court, headed by Justice Umar Ata Bandial, announced a short order in a set of constitutional petitions, challenging the presidential reference against Justice Isa.
Apart from Justice Isa, the Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC) and various bar associations across country had also challenged the presidential reference, calling it unconstitutional, illegal and mala fide.
The apex court short order said: “For detailed reasons to be recorded later and subject to any orders made or directions given therein (if any), these petitions are allowed and disposed of and the 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 Supreme Judicial Council (“Council”) against the Petitioner in CP 17/2019 (including the show-cause notice dated 17-07-2019 issued to him) stand abated.”
Soon after the judgment, Pakistan Bar Council (PBC), the apex body of he legal fraternity, announced celebrating the victory of the cause of rule of law and independence of judiciary and so will observe Youm-e-Tashakur on June 22 by holding meetings in their respective bar rooms.
Justice Yahya Afridi dismissed the petition of Justice Qazi Faez Isa for not being maintainable however, he disposed of other petitions, filed by various bar associations.
“Justice Yahya Afridi dismisses CP 17/2019 and disposes of the other petitions in terms as stated in Para 1 herein above,” says the short order. According to the short order, 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 referred the matter to the Federal Board of Revenue (FBR), directing it to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.
Zarina Montserrat Khoso Carrera, spouse of Justice Qzai Faez Isa, the other day gave money trail for purchasing three properties in United Kingdom (UK).
Seven judges directed the Inland Commissioner Revenue to issue notices in seven days to the spouse and children of Justice Isa, seeking their explanation regarding sources of funds for acquiring properties in the United Kingdom.
“Within 7 days of this Order, the concerned Commissioner of Inland Revenue shall himself (and not some other officer exercising delegated powers) issue appropriate notices under the Income Tax Ordinance, 2001 (“2001 Ordinance”) to the spouse and children of the Petitioner to offer an explanation regarding the nature and source of the funds (separately for each property) whereby the three properties in the United Kingdom (viz., No. 40, Oakdale Road, London E11 4DL; No. 90, Adelaide Road, London E10 5NW; and No. 50, Coniston Court, Kendal Street, London W2 2AN) that are in the names of the spouse and the children were acquired,” says the short order.
The seven judges held that for purposes of the order, the Commissioner Inland Revenue having jurisdiction over the spouse of the petitioner (who must be a commissioner exercising jurisdiction and performing functions at Islamabad) shall be deemed also to be the commissioner having jurisdiction over the children.
They further directed that (the spouse and children are herein after referred to as “the respondents”.) 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 seven judges directed that the notices shall be served at the official residence of the petitioner at 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 respondents shall furnish their replies to the notices along with such material and record as is deemed appropriate,” says the short order adding that 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 in Pakistan of such person.
The court held that 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 authorised representative/ counsel and shall thereupon make an order in accordance with the 2001 Ordinance.
“The proceedings shall be concluded before the commissioner within 60 days of the date of receipt of the notices as aforesaid, 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 as affects or extends the aforesaid periods,” adds the order.
Similarly, the court directed that within seven days of the issuance of the order by the commissioner, the chairman, Federal Board of Revenue shall submit a report (to be personally signed by him) to the Council through its Secretary (i.e., the Registrar of the Supreme Court) regarding the proceedings as aforesaid, appending thereto the entire record of the said proceedings.
The court directed that the secretary shall forthwith place such report before the chairman of the Council (i.e, 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, if any, in relation to the petitioner as the Council may determines.
“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 suo moto jurisdiction as is conferred by that Article on the Council,” says the order.
The court further directed that if, within 100 days from the date of this order, no report as aforesaid is received by the secretary from the FBR chairman, he shall inform the chairman of the Council 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 in terms of Para 9 herein above. 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 chairman of the Council who may direct that the matter be placed before the Council for such perusal, consideration, action, order or proceedings, if any, in relation to the petitioner (or any other person as deemed appropriate) as the Council may determine,” the short order added.
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), says the order.
The court, however, clarified that any of the proceedings under the 2001 Ordinance as herein contemplated on the one hand, and before the Council in terms of Paras 9 or 10 herein above 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 (as the case may be) any order made or decision taken at any appellate stage, the court noted adding that any such appeal(s) shall be decided on merit, in accordance with the 2001 Ordinance.
At the same time (and needless to say), the consideration by the Council of any matter placed before it under either Paras 9 or 10 herein above shall not be affected by the filing or pendency of any appeal as aforesaid, says the short order adding that 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.
Meanwhile, Justice Maqbool Baqir, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi also made their own order and held the petitions maintainable and allowed the same.
The three judges held that one of the outcomes of such declaration is that the reference filed by the President of Pakistan against the petitioner (Qazi Faez Isa) is quashed, and as a result the proceedings along with the show-cause notice issued by Supreme Judicial Council stand abated.
“One of our pivotal Constitutional values is that the independence of judiciary shall be fully secured,” they maintained adding that 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, they 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 three judges held that the doors of the constitutional forum i.e., Supreme Judicial Council are always open, either on its own motion or for anyone who has a genuine and a bona fide grievance, amenable to the jurisdiction of the Council against a judge of the Constitutional Court.
“At the same time, 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,” they maintained and held that 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.
Earlier, Munir A Malik, counsel for Justice Qazi Faez Isa, argued in his rebuttal and pleaded for quashing the presidential reference while Hamid Khan, counsel for Supreme Court Bar Association, Raza Rabbani, counsel for Sindh Bar Council, and Syed Iftikhar Hussain Gillani representing various bar associations of Khyber-Pakhtunkhwa also argued and prayed for quashing the presidential reference for being malicious, unlawful and of no legal effect and on the basis of mala fide.
The court then tanked all the counsel for the parties for their valuable arguments in assisting it in the matter and reserved the judgment. Justice Umar Ata Bandial said that if they achieve consensus, the bench will reassembled at 4pm.
Meanwhile, Syed Qalb-i-Hassan, president, Supreme Court Bar Association, appreciated what he called historic verdict of the Supreme Court quashing thereby the reference of the federal government against Justice Qazi Faez Isa.
He strongly commended the apex court for its courageous demonstration guarding its independence thus upholding the prime objective of the rule of law and supremacy of the Constitution.
Similarly, Abid Saqi, vice-chairman and Azam Nazeer Tarar, chairman, Executive Committee of the Pakistan Bar Council, also appreciated the verdict quashing the reference, thus frustrating the nefarious and ill-motivated move of the government to subdue and pressurise the independent judiciary of Pakistan.
