Faez Isa case judgment: Detailed reasons of four judges who rejected review petition of Justice Isa

ISLAMABAD: The Supreme Court Friday held that Justice Qazi Faez Isa was holding the public office of Chief Justice of the Balochistan High Court in 2013, when his spouse and children purchased three properties in London; however, these were undeclared in the wealth statements of Mrs Isa and the learned judge.

In these circumstances, the non-disclosure of the London properties causes suspicion and trepidation, says detailed dissenting reasons given by Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Muneeb Akhtar and Justice Qazi Muhammad Amin Ahmed in the review petition of Justice Qazi Faez Isa.

The four judges dismissed all nine review petitions and upheld their decision of June 19, 2020, in the main reference filed against Justice Qazi Faez Isa as well as in the detailed reasons on October 23, 2020.

Last year on April 26, a 10–member larger bench headed by Justice Umer Ata Bandial had accepted the review petitions by a majority of 6-4. Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Aminuddin Khan, Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Mazhar Alam accepted the petitions.

While Justice Umer Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed had rejected the review petitions. On January 29, 2022, the six judges including Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Aminuddin Khan, Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Mazhar Alam Khan Miankhel had given detailed reasons after nine months for accepting the review petitions of Justice Qazi Faez Isa and others.

On Friday, the detailed dissenting reasons, authored by Chief Justice of Pakistan Justice Umer Ata Bandail held that in the present case, it is admitted that the three London properties belong to Mrs. Isa and her children; that two of the properties, namely, 40 Oakdale Road and 90 Adelaide Road, were purchased in 2013 when the learned petitioner was holding the public office of Chief Justice of the Balochistan High Court; and that the properties were undeclared in the wealth statements of Mrs. Isa and the learned petitioner.

The detailed reasons held that although judges may be protected from the ordinary processes of law, they are not subject to separate or lower legal standards of accountability compared to other public servants. They are answerable at the bare minimum against the same benchmarks applied to ordinary public servants. This includes being accountable for the unexplained assets of their spouses and family members. The only difference is that a judge of a superior court is answerable before a specialized forum created specifically for determining complaints of misconduct received against judges.

That SJC is one such forum was affirmed in the Khan Asfandyar Wali case holding that “To treat, at the very least, Superior Court Judges on par with other public servants is not exceptional. In the Asghar Khan case, judges were declared to be in the Service of Pakistan, the four judges noted. This is because judges occupy an office ‘in connection with the affairs of the Federation,’ a phrase which has been defined by the Court in Salahuddin Vs. Frontier Sugar Mills & Distillery Ltd (PLD 1975 SC 244). When the office of a judge of the Supreme Court is scrutinised against these ingredients, it becomes obvious that judges of this Court are indeed public servants, says the detailed reasons of the four judges

They held that judger’s office is created by the Constitution and so are the jurisdiction and powers that they possess. They perform an essential governmental function: the administration of justice for the benefit of the public at large. They have a fixed tenure, prescribed by Article 179 of the Constitution and their emoluments are paid from the Federal Consolidated Fund under Article 81 of the Constitution.

As a result, there is no doubt that a judge of the Supreme Court is a public servant for the purposes of Section 216(3)(p) of the [Income Tax] Ordinance...” They further held that more so when one views Sections 11(5) and 111(1)(d) of the Ordinance which mandate since the promulgation of the Ordinance [in the case of Section 11(5)] and 2011 [in the case of Section 111(1)(d)] that the income of a resident person includes both his domestic and foreign income and the failure to disclose the same renders a resident person liable to pay the tax evaded. Therefore, in such circumstances a question to the learned petitioner about the source of funding of these properties is natural, relevant and lawful”, the four judges observed.

That question must not be bypassed because being in the Service of Pakistan, the learned petitioner remains answerable for the unaccounted assets of his spouse. The four judges noted that no satisfactory reasoning was put forward by any review petitioner on why no standards of accountability or separate or lower ones should apply to Judges (who also fall in the category of public servants) and why the SJC should wait for a final determination by the relevant statutory authorities before processing an information received against a Judge on this score.

Indeed, it is of vital importance that public office holders, particularly judges of the Superior Courts, serving the people of Pakistan remain answerable before their relevant forums to safeguard the integrity and credibility of their person as well as of their Court. They held that as custodians of the Constitution and the guardian of peoples’ fundamental rights the Courts try people and hold them accountable according to the Constitution and the law. Their judicial orders are accepted and obeyed by the people for their trust in the Courts’ moral authority which is dependent upon the personal rectitude of the judges.

They held that the obligation on judges to be transparent in their conduct is also exemplified in the Code of Conduct for Judges of the Supreme Court and High Court (“CoC”) issued by the SJC under Article 209(8) of the Constitution which calls upon Superior Court Judges ‘to present before the public an image of justice of the nation.’

It is further provided that a judge must possess ‘the highest qualities of intellect and character’ and ‘keep his conduct in all things, official and private, free from impropriety.’ They noted that this obligation on judges to be aware of and/or accountable for the financial affairs of their family members can also be found in the laws of Pakistan that govern the realm of unaccounted/unexplained wealth of public servants.

For instance, they noted that the State Bank of Pakistan (SBP) in exercise of its powers under Section 41 of the Banking Companies Ordinance, 1962 has framed the Anti-Money Laundering and Combating the Financing of Terrorism (AML/CFT) Regulations for Banks & DFIs (“Regulations”) (revised and issued on 13.09.2012). These Regulations, inter alia, aim to establish the source of wealth/funds of certain specific persons who are customers of Banks and DFIs and include Politically Exposed Persons (PEPs), a term that is defined to include judges.

They cited a reference made to the decision in the State Vs. Mr. Justice Akhlaque Hussain (PLD 1960 SC (Pak) 26) in which this Court adjudicated on a charge of tax evasion levelled against a High Court judge and recommended his removal thereon. They also referred to the case titled The President Vs. Mr. Justice Shaukat Ali (PLD 1971 SC 585) the SJC applied the principles of Company Law to recommend the removal of a High Court Judge in respect of allegations that he was involved in activities of trade and industry.

Similar examples are also available in foreign jurisdictions such as India and Canada, the four judges noted adding that Justice Soumitra Sen of Calcutta High Court was charged with appropriating around Rs.33 lacs as a court appointed receiver in 1993. He was found guilty by an Inquiry Committee constituted by the Chairman of Rajya Sabha on 10.09.2010. He later resigned.

“It becomes clear from these illustrations that although jJudges may be protected from the ordinary processes of law, they are not subject to separate or lower legal standards of accountability compared to other public servants”, they held. They are answerable at the bare minimum against the same benchmarks applied to ordinary public servants.

This includes being accountable for the unexplained assets of their spouses and family members. They recalled that during the hearing of Const. P. No.17 of 2019, the learned petitioner himself on June 17, 2020, made an oral request on behalf of Mrs. Isa for addressing the Court.

The request was granted. Thereafter, in her video link statement on June 18, 2020 (a transcript of which is available with the order sheet), Mrs. Isa expressly asked why she had not been questioned by the tax authorities when the reference alleged her London properties to be shrouded in controversy. The assertion that she could fully explain the source of funding of the properties was implicit in her statement. Equally her stand acknowledged an obligation to justify the same. She also referred to her sources of income that apparently financed the purchase of the London properties. This indicated that she was prepared for and inclined to answer questions about the London properties.

Therefore, in issuing the direction to the FBR to commence proceedings in respect of the London properties, the Court was moved by two factors: firstly, that Mrs. Isa be given an opportunity to explain the source of funding of the London properties so that any stigma surrounding them is erased from the person of the learned petitioner and the Court; and secondly, to redress Mrs. Isa’s complaint as expressed in her video link statement of June 18, 2020, made before the Court that she should have, but had not, been asked about the properties from the beginning:

“Judge: ...We understand and we can notice and realize you have a great deal of record showing accrual of income and transfer from your own account to your foreign account and then the purchase of foreign property...We have a little problem; we cannot look at the merits of the case. There are two forums available. Your Hon’ble husband has in his pleadings indicated that this is a matter which should go to the tax authorities but it is a matter concerning your interest and your records; that is one option; and this is something we told the parties two days ago. The second thing is that another forum which is competent to hear you; and I assure you, you will be given a most sympathetic hearing, each and every document you say, will be considered, preserved... And that is the Supreme Judicial Council; you can make the statement there...

Mrs. Isa: Why has no one asked me this from the beginning? Why has the FBR not contacted me: I have waited and waited; 13 months of hell they have put us through; my family and I... I have requested as my husband has, please ask us from the beginning[.] Why after 13 months are you then saying then there are these two forum? Why were we not asked at the beginning...

Judge: We understand what you are saying but even this plea is on the merits. We cannot consider it... but now we will make sure that they will attend to you, they will not be derisory as your husband complained yesterday; they will respect you; they will consider all the documents you have and all this issue of limitation etc. that is something which has to be dealt with in accordance with law...

Judge: ...The point is Madam that we do not have jurisdiction to hear the dispute on merits; and for the Courts of law, jurisdiction is fundamental... Now we don’t, we cannot give a finding that you have adequate funds or inadequate funds. These are matters which have to be decided by competent authorities so we are grateful that you came before

The above-quoted extracts demonstrate that it was made clear to Mrs. Isa that the Court could not decide her case on merits and that the competent authority, whether it be the FBR or the SJC, had the jurisdiction to determine the factual issue of source of funding along with all other ancillary matters. Ultimately, the decision was made to refer the matter to the FBR for reasons already set out in the

Majority Judgment: The four judges said “Our decision to take such a step was primarily based on two grounds: to establish that Judges of the Superior Court are answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution; and to honour the petitioner's plea that the allegation of absence of source of funds and money laundering must be first put to Mrs. Isa who is an independent taxpayer.

Rather than allowing the disturbing allegation against the petitioner and his family to circulate and attract innuendos thereby injuring the reputation and integrity of both the petitioner and this Court, we adopted the fair, impartial and transparent route of allowing Mrs. Isa and her children to disclose the source of their funds to the relevant authorities, namely, the FBR.

It may be mentioned here that our decision to refer the matter for verification to the FBR grants the petitioner's plea from the very start of the proceedings that his wife and children should be asked about their source of funds for the acquisition of the London properties.

This was reiterated by learned counsel for the petitioner during arguments. He submitted that a determination by the tax authorities was essential to ensure that the due process rights of the petitioner and his family under Article 10A of the Constitution were not violated. Mrs. Isa also adopted a similar stance in her statement, given through video link, on 18.06.2020 to the Court.

To our minds the FBR being the premier tax authority in Pakistan is the most well equipped to deal with questions of a financial nature. It not only maintains the complete tax records of taxpayers, including those of Mrs. Isa's, but also employs personnel who are well-versed in comprehending and analysing financial and tax records.”

Consequently, having herself demanded why the FBR had not approached her regarding the London Properties, Mrs. Isa cannot now take the contradictory plea that a direction to the FBR to this effect is contrary to law. The next issue which was briefly touched upon during arguments was whether the FBR was even competent to inquire into the London Properties since a period of five years and more had elapsed from the date of purchase of the London Properties. Since this matter directly pertains to the application of the Ordinance to the merits of this case the Court cannot examine it (refer to previous para).

“It is settled law that the existence and exercise of the Court’s power under the Constitution to issue directions is not dependent on express invocation of such power in its order, the four judges noted.

Not invoking the correct provision of law or citing an incorrect one for sustaining an order is of no consequence if the Court has jurisdiction under the law to pass that very order. “Therefore, referring her case to the FBR for verification and scrutiny was wholly in accordance with the scheme of the Ordinance (refer to Section 111(1) of the Ordinance, reproduced in para 26). In no way did the direction to the FBR determine or influence the outcome of the proceedings which were to be conducted under the Ordinance by a CIR who was duly authorized”, the four judges justified.

Therefore, the contention of the review petitioners that Mrs. Isa was not granted a hearing by the Court is baseless and does not disclose any error apparent on the face of the record”, they held

The court held that the judicial direction issued to the FBR under Articles 184(3) and 187 of the Constitution was factually and legally well-founded. The issuance of such a direction is lawful and valid as exemplified by the judicial precedents of this Court [ref: Imran Ahmed Khan Vs. Muhammad Nawaz Sharif (PLD 2017 SC 692) atpara 14(g) and Muhammad Khalid Vs. National Accountability Bureau (2017 SCMR 1340) at para 5].

The rationale behind passing these directions is also well-documented and was aptly explained in the case of Muhammad Nawaz Sharif Vs. Imran Ahmed Khan Niazi, the detailed reasons added.

The four judges cited “Surah Al-Isra, Verse 16 When We decide to destroy a population, We (first) send a definite order to those among them who are given the good things of this life and yet transgress; so that the word is proved true against them: then (it is) We destroy them utterly.”

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.

In view of what has been discussed, all the nine review petitions are dismissed. Accordingly, the Short Order dated 19.06.2020 and the Detailed Reasons dated 23.10.2020 are upheld in their entirety.

Justice Muneeb Akhtar has written an additional note.