Judge’s trial saw many twists and turns: UK govt told Pak authorities properties were bought legally

ISLAMABAD/LONDON : The unique saga that began unfolding in early 2019 with the filing of a presidential reference against Justice Qazi Faez Isa in the Supreme Judicial Council (SJC) has culminated on a high note for the judge.

The protracted Supreme Court proceedings on the reference witnessed many twists and turns over the past two years.

Apart from Justice Isa, President Arif Alvi had also filed references against two high court judges, but they hardly found any mention in the public debate and the entire focus remained on Justice Isa.

It was unprecedented that a sitting Supreme Court justice argued his own case before ten brother judges in the long absence of his counsel in the concluding days of the proceedings. It was naturally a difficult case, as it involved a judge and his family and was to be adjudicated by his peers. While Justice Isa pleaded as a lawyer before them, as part of the bench continued to act as a judge while hearing cases of other litigants.

This was also the first time that the spouse of an apex court judge appeared before the tax authorities more than once to explain the legitimacy of her income. She also personally presented her case before the Supreme Court specifically during the hearings on her review petition.

Many lawyers’ representative bodies, public forums and journalists’ associations also became a party to the review proceedings.

In June last year, Farogh Naseem resigned as federal law minister to represent the government in the Supreme Court in the reference against Justice Isa, Attorney General Anwar Mansoor Khan had to step down as a result of messing up the affair. In February last year, the newly appointed Attorney General, Khalid Javed Khan, recused himself from representing the federal government in the presidential reference.

The reference said that Justice Isa had acquired three properties in London on lease in the name of his wife and children between 2011 and 2015 but did not disclose them in his wealth returns. However, he contested the allegation all along, saying he was not a beneficial owner of the flats either directly or indirectly. Looking at the chronological order of the events that took place, it becomes clear that in May 2019, reports emerged on social media and TV channels that President Alvi has filed a reference against Justice Isa. Zahid F Ebrahim instantly resigned as the additional attorney-general of Pakistan, calling it an attempt to tar the reputation of independent individuals and browbeat the judiciary of Pakistan.

In June that year, the Pakistan Electronic Media Regulatory Authority (Pemra) served show-cause notices to 14 news channels for commenting on the reference filed in the SJC. The government finally confirmed that the references have been filed in the SJC against three judges for owning foreign assets.

An official statement said the Asset Recovery Unit (ARU) forwarded the complaint to the law and justice ministry. It verified it and received “certified copies from the land registries of the relevant assets, which were duly attested by the High Commission of Pakistan in the UK and notarised in London”. The information was shared with the SJC and the references were filed, it said.

On June 14, 2019, the SJC opened the hearing on the reference against Justice Isa. In August, the judge challenged the reference against him in the Supreme Court with the request to issue a restraining order against the SJC proceedings till the decision on his plea. In the same month, the SJC accused Justice Isa for making insinuations against state institutions.

The then-chief justice, Asif Saeed Khosa, formed a seven-judge bench led by Justice Umar Ata Bandial to hear Justice Isa’s petition against the reference. In September, Justice Isa requested the Supreme Court to form a full court bench comprising all eligible judges to hear his petition.

Justice Isa’s lawyer, Munir A Malik, filed a petition seeking the recusal of Justice Ijazul Ahsan and Justice Sardar Tariq Masood. He said that they had raised reservations for the protection of the judiciary. In June last, the Supreme Court in a majority 9-1 judgment threw out the reference terming it invalid and of no legal effect. However, seven of the 10 judges had ordered the tax authorities to seek explanations from the judge's wife and children on the nature and source of funding of three properties in their names in the United Kingdom and submit a report to the court registrar. Justice Isa approached the apex court, seeking a review of the decision, which ultimately came on Monday. Mrs. Sarina Isa had presented a series of arguments in her over a dozen appearances before the apex court which ultimately led her and her husband to get out of tax authorities' investigation on Monday.

Since a 10-member bench of the Supreme Court (SC) empowered the Federal Board of Revenue (FBR) to conduct an inquiry into offshore assets of Justice Qazi Faez Isa and his family members, Mrs. Sarina Isa presented her arguments consisted of over 1,700 pages before the tax authorities as well as the apex court.

"All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in short order of June 6, 2020 are declared to be illegal and without any legal effect," read the apex court order issued in her review petition on Monday.

Since June 2020, she has been arguing both before the FBR and SC that tax authorities did not have territorial jurisdiction to investigate her case. "You [FBR Commissioner Zulfiqar Ahmed] also do not have legal jurisdiction," Sarina Isa told the authorities on July 9, 2020.

The issue of jurisdiction has time and again been highlighted as being of fundamental importance in the judgments handed down by the superior courts, she argued "I have not concealed any taxable income nor provided inaccurate particulars."

"Any probe in the source of income of the finalised tax years is not permitted under the Tax Ordinance as it was barred by time. The properties in London were acquired from Pakistan source income and money transfer through banking channel, which was also directly confirmed by your office (unauthorisedly and behind my back) from the concerned bank. But you are not only questioning Pakistan's source income but also denying that it was used for acquisition of properties." It is to be mentioned that that Pakistan govt’s Assets Recovery Unit (ARU) had obtained details of Isa family assets from the UK government and at the same time asked the government to inform Pakistan if any illegality had happened during the transfer or purchase of funds and whether any funds had been used which didn’t match the monies transferred from Pakistan.

According to sources, the UK government’s Customs and Revenue Department informed the Pakistan government that the three assets were bought legally, anti money-laundering checks were made and the funds used in the UK matched the funds sent from Pakistan. It’s not known whether this report was made part of the court record or not but a source here said the UK government confirmed these facts to authorities in Pakistan.

Sarina Isa further argued in her case that the purported order was passed because FBR investigators were apparently not satisfied with her explanation. This does not call for imposition of penalty, she added. "In any event my salary paid by the Karachi American School since the year 1982 was disregarded; the sale proceeds and profits earned from the sale of two properties in Clifton, Karachi were also disregarded; and so too were my earnings from my agricultural lands; without disputing that I had worked in the Karachi American School since 1982, had bought and sold two properties in Clifton, Karachi and owned the stated agricultural lands," she submitted these arguments before FBR as well as the apex court.

"FBR disregarded my entire life of work and earnings by a stroke of the pen and assumed that I could not buy properties equivalent in value to a house built on a 500 square yards plot. Is this because I am a woman," she questioned.

On her income justification, she told SC that from her agricultural earnings and taxable income she would buy foreign currency. Price of UK pounds and US dollars was far less when they were bought, she further claimed that FBR also illegally collected information about her foreign currency accounts and in FBR team's show cause notice of 30th July, 2020 state that, "foreign exchange remitted by you is £737,503 and $17,966" which is about the cost of the said properties.”