SC stops all actions against Justice Isa, family

ISLAMABAD: The Supreme Court on Monday accepted identical petitions challenging its last year’s order of June 19 referring the matter to the Federal Board of Revenue with a direction to initiate tax proceedings against the spouse and children of Justice Qazi Faez Isa.

A 10-member larger bench headed by Justice Umer Ata Bandial allowed the review petitions filed by Justice Qazi Faez Isa and various Bar associations against its order of June 19, 2020.

Other members of the bench were Justice Maqbool Baqir, Justice Manzoor Ahmed Malik, Justice Sajjad Ali Shah, Justice Mazhar Alam Miankhel, Justice Muneeb Akhtar, Justice Mansoor Ali Shah, Justice Sajjad Ali Shah, Justice Qazi Muhammad Amin Ahmed, Justice Yahya Afridi and Justice Amin Uddin Khan.

Five judges dismissed the review petition of Justice Qazi Faez Isa while five allowed it. The majority six to four set aside the last year’s June 19 order referring the matter to the Federal Board of Revenue, directing tax proceedings against the spouse and children of Justice Qazi Faez Isa.

“By majority of six to four (Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed dissenting), these review petitions, except as mentioned below, are allowed, Justice Umer Ata Bandial announced in a short order after Additional Attorney-General Aamir Rehman concluded his arguments. The Civil Review Petition No 296 of 2020 titled Justice Qazi Faez Isa vs. The President of Pakistan & others) is allowed by five and dismissed by five members of the Bench”, the court short order further read

Five judges -- Justice Maqbool Baqir Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan -- allowed the review petitions and recalled the order of June 19, 2020.

“For the reasons to be recorded later, captioned Review Petitions are allowed and the directions contained in paras 4 to 11 of the impugned short order dated June 19, 2020, passed in constitutional petition No 17/2019 and other connected matters along with supporting detailed reasons given in the majority judgment of the same date are recalled and set aside”, the five members held in their separate order

They held that all the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order dated Jun 19, 2020 and the detailed reasons thereof, are declared to be illegal and without any legal effect.

“Resultantly, any such proceedings, actions, orders or reports cannot be considered or acted upon and pursued any further by any forum or authority, including the Supreme Judicial

Council”, the five judges held. Similarly, Yahya Afridi upheld his decision, dismissing the petition of Justice Qazi Faez on June 19, 2020, for not being maintainable but allowed the review petitions, declaring directions contained in the court last year short order of no legal effect.

“For the reasons to be recorded later, all review petitions except CRP No 296 of 2020 are allowed and the directions contained in paragraphs 4 to 11 of the order dated June 19, 2020 and detailed judgment dated Oct 23, 2020, passed in constitutional petition No 17 of 2019 and other connected petitions are recalled”, Justice Yahya Afridi held in his separate note.

“Consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions are declared to be of no legal effect and/or consequence”, Justice Afridi added.

Earlier, the court after hearing Additional Attorney-General Aamir Rehman announced that it will rise after an hour to announce its order. Justice Qazi Faez Isa along with his spouse Sarina Issa and daughter was present in the courtroom, waiting for the court’s decision. Later on, the court again arrived and announced its short order.

Last year on June 19, the court had quashed the Presidential Reference filed against Justice Qazi Faez Isa for allegedly not disclosing his foreign properties in his wealth returns and halted the proceedings pending with the Supreme Judicial Council against the Judge as well as the show-cause issued to him on July 17, 2019.

Seven judges --- 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 --- had referred the matter to the Federal Board of Revenue, directing to initiate tax proceedings against spouse and children of Justice Qazi Faez Isa.

While three judges --- Justice Maqbool Baqi, Justice Mansoor Ali Shah and Justice Yahya Afridi --- had 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 issued by the Supreme Judicial Council stand abated.

The three Judges held that the doors of the constitutional forum ---- the Supreme Judicial Council --- are always open, either on its own motion or for anyone who has a genuine and bona fide grievance amenable to the jurisdiction of the council against a judge of the Constitutional Court.

Likewise, the seven judges had directed the In-land Commissioner Revenue to issue notices in seven days to the spouse and children of Justice Isa, seeking their explanation regarding source of funds for acquiring properties in the United Kingdom.

“Within seven days of this order, the Commissioner of Inland Revenue concerned 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 are acquired,” says he short order.

The seven judges held that “for purposes of this 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 authorized 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”, says 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 (FBR) 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 determine.

“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 short 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, the matter shall proceed in terms of para 9 herein above. If a reply is received without the report or no reply is received, 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 maintained.

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, 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 the merits, 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.

The order was later on challenged by Justice Qazi Faez Is, his spouse Sarina Isa and various Bar associations and bar councils to the extent of sending the matter to FBR, directing to initiate tax proceedings against the spouse and children of Justice Qazi Faez Isa.