By Shakeel Ahmed
ISLAMABAD: The Supreme Court cautioned the federal government on Thursday against the consequences if the federal government failed to prove its case against Justice Qazi Faez Isa.
A 10-member bench of the apex court, led by Justice Umar Ata Bandial, was hearing Justice Isa’s petition against the reference and the proceedings of the Supreme Judicial Council against him.
The bench has raised serious questions over working of Assets Recovery Units (ARU) and the federal government has yet to satisfy the court on the matter.
The Centre should bear in mind the consequences in case it is unable to prove its case against Justice Isa, remarked Justice Maqbool Baqar.
Who floated the idea that the reference should be filed against the apex court’s judge, asked Justice Bandial of the federal government’s lawyer, Dr Farogh Naseem.
Meanwhile, Justice Muneeb Akhtar, observed that the federal government had alleged three offences in its reference – violation of laws pertaining to taxation, money laundering and the Foreign Exchange Regulation Act.
However, said Justice Akhtar, there was no offence of money laundering in this case in view of the relevant laws as the properties under scrutiny were acquired in 2013. Justice Akhtar noted that both the Foreign Exchange Regulations Act Amendments and the law pertaining to money laundering came after 2015. Instead of referring the matter to tax authorities, the ARU made a serious error in this case, he remarked.
Justice Akhtar then asked Dr Naseem to read out the recent judgement on privacy, which was passed by the United Kingdom’s Supreme Court.
The federal counsel was also questioned by Justice Bandial on the accusations laid against Justice Isa.
If the tax authority finds a Rs10,000 default against the judge, would the accused judge be liable for action against Article 209, asked Justice Bandial.
Article 209 of the Constitution of Pakistan pertains to action against a judge when he has been guilty of misconduct.
In the previous hearing, Justice Bandial had observed that action is initiated under Article 209 when the judiciary as an institution is injured and there is a serious element of dishonesty or corruption in his work which affects public trust in the judiciary.
On Thursday, Justice Bandial asked Dr Naseem to give the court any information which fundamentally proved that Justice Isa had committed misconduct.
He asked the federal counsel once again as to why proceedings pertaining to tax violations had not been initiated against the accused judge before the Centre filed its reference.
He further asked the federal counsel to explain to the apex court under which law it was mandatory for the accused SC judge to disclose properties of his independent family members.
In a similar vein, Justice Baqar noted that no violation of the tax law had been proven against Justice Isa. Similarly, Justice Syed Mansoor Ali Shah remarked that judges were not above the law and the Federal Board of Revenue was free to examine their tax returns.
The bench wondered how the ARU could sidestep statuary bodies like the Federal Investigation Agency and the FBR and take action in oversight.
The court further question how the ARU could be established without legal backing. Justice Shah wondered how this could affect citizens in the absence of proper legislation.
The federal counsel argued that the ARU was formed after suo motu proceedings of apex court related to the retrieval of ill-gotten money in 2018. Dr Naseem maintained that the prime minister has residuary powers to form bodies such as the ARU, which was also part of the cabinet.
The hearing of the case was adjourned till Monday, June 8, 2020.
The federal government’s lawyer has been under hot water in the hearings of the case thus far. The 10-member bench has put forth questions for the Centre, which Dr Naseem has yet to satisfy the court on.
The Supreme Court’s queries are as follows:
1) A violation of trivial requirements of the tax law may not necessarily be misconduct in terms of Article 209. There is no allegation of corruption nor have any ingredients of money laundering been shown. So the government must show that the judge violated some legal obligation serious enough to justify Article 209.
2) The government should show some law, whether in income tax or otherwise, that imposes upon a judge the legal duty to disclose his wife & children’s assets even if they are not dependent.
Or which makes a judge responsible to show a money trail for their assets due to some kind of doctrine of “sufficient connection”.
But this doctrine or obligation must be established in some law and can’t just be assumed.
3) Even if assumed that the presidential reference had some defects in its procedure, wasn’t it still open for the SJC to say that well we don’t accept the reference and we file it but the material that has been brought forward is still serious enough to justify an independent suo motu enquiry of our own?
Despite being asked several times, the federal government has yet to respond to the judges on their concerns pertaining to the legal status of ARU and questions regarding malafide intent.
A senior lawyer, who witnessed full court proceedings over the last two days, believes that the federal government is struggling in this case. If the apex court quashes the reference on the basis of malafide in law and facts, then responsibility might be fixed against government functionaries, and Centre would have to face dreadful consequences.
The Supreme Court of Pakistan resumed on Thursday the hearing on the presidential reference filed against Justice Qazi Faez Isa, who is accused of hiding details of his assets in London.
A ten-member larger SC bench headed by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed heard the case today.
During the hearing, Supreme Court’s Justice Muneeb Akhtar asked how can President Arif Alvi and Prime Minister Imran Khan approve a presidential reference based on ‘false legal advice’.
“Telling you in a lenient way that this legal mistake can have consequences,” threatened the apex court judge in his remarks.
The judge asked the government’s counsel and former law minister Barrister Farogh Naseem to tell him about the ‘brilliant’ person who advised the president and prime minister to approve the reference against the SC judge.
“Money Laundering Act does not apply from 2013, so that allegation goes out of the window,” said Justice Atta Bandiyal.
Justice Mansoor Ali Shah said that the court had earlier inquired that how many public office-holders have faced the same legal action.
To which, Naseem said that he has made a note of the question.
Justice Mansoor noted that the government’s counsel has also failed to explain how the Assets Recovery Unit acquired the authority to question a judge.
In continuation of the remarks of the judges, Justice Bandiyal pointed out that the case does not engage action under the 209 Article of the SJC in case of defaulting tax worth Rs 10,000.
“Yes, you are absolutely right, but the Supreme Judicial Council has issued a showcause notice,” responded Naseem before the judges.
He said that the federal government only forwarded the verified information to the SJC to run inquiry.
In Wednesday’s hearing, the apex court looked into the petitions by the Supreme Judicial Council, where during the arguments the government’s counsel Farogh Naseem claimed that the Federal Bureau of Revenue did not begin inquiry against Justice Isa, out of fear.
Naseem had earlier tendered his resignation to represent government in the case agaisnt the judge.
The reference filed against Justice Isa alleged that he 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 wealth returns.
In February this year, the Supreme Court (SC) had directed the federal government to explain in court whether the Asset Recovery Unit (ARU) was empowered to conduct an inquiry against a sitting judge of the apex court.
The results of the inquiry, later placed before President Arif Alvi, had resulted in a presidential reference filed against Justice Isa back in May 2019. Justice Isa had been accused of failing to disclose assets belonging to his wife and children in his tax returns.