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ISLAMABAD: The Supreme Court noticed no authorization for investigating the affairs against Justice Qazi Faez Isa was given by the President and Prime Minister, instead the authorization of the law minister was obtained. A 10-judge Full Court, headed by Justice Umar Ata Bandial, on Friday announced a 224-page reserved judgment, which contains the separate notes by Justice Faisal Arab and Justice Yahya Afridi.

On June 19, seven out of ten judges of the bench referred the matter to the Federal Board of Revenue (FBR) for initiating tax proceedings against Justice Isa's spouse and children for not disclosing their UK properties to the tax authorities while filing their returns. Identical petitions were filed by Justice Qazi Faez Isa, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils & Association of Punjab, Sindh and Balochistan, Abid Hassan Minto, and I A Rehman against the presidential reference. The main judgment, authored by Justice Umar Ata Bandial, noted that there was neither any evidence nor the nomination of a predicate offence in the Reference to support the allegation of money laundering against the petitioner. Likewise, there was no evidence that the petitioner had violated the regime under the FERA and even the relevant provisions from the said law were not specified in the Reference.

"There is no allegation or material on record suggesting that the petitioner or Mrs. Isa transferred money to the United Kingdom via illegal means/methods. Therefore, this novel argument is theoretical and speculative in content," according to the judgement.

It also said "the President received inadmissible advice from the AG and Law Minister, the chief architects of the Reference, on the strengths and weaknesses of the Reference.

"The President did not get considered, fair and objective advice from a third party on the questions of law noted in the Reference. "The President failed to notice the various legal and procedural defects in the Reference. "The President did not form a considered opinion under Article 209(5) of the Constitution. As there was no valid authorization for the investigation, the respondents (federation) illegally accessed the tax records of the petitioner and Mrs. Isa.

Fairness and objectivity dictate that those involved in the investigation and framing of the reference may brief the President but cannot advise him on whether it is maintainable and appropriate for inquiry by the Supreme Judicial Council (SJC).

"This is because there is a clear conflict of interest for the architects of the reference to opine on the weaknesses of their work. But this is precisely what happened in the present Reference."

The judgement said, "Firdous Ashiq Awan, former Information, Minister made contemptuous remarks against Justice Qazi Faez Isa in public. These illegal acts of the respondents depict their utter disregard of the law.

"Filing a reference under Article 209 of the Constitution against a judge is a matter requiring utmost prudence and caution by its framers. However, in the present case, the actions of the respondents have violated not only the express provisions of the Constitution, the ROB, the Ordinance and AMLA but have also ignored the law laid down in the ex-CJP Iftikhar Muhammad case, which specifically set out certain safeguards to protect superior court Judges from arbitrary actions of the Executive.

In these circumstances, the errors committed by them in the preparation and framing of the Reference cannot be termed as mere illegalities. Instead, in the context of Article 209 their errors amount to a wanton disregard of the law. Being arbitrary and illegal these act have ceased to be actions contemplated by any of the applicable laws such as the Constitution and the Income Tax Ordinance.

"As a result, although the preparation and framing of the Reference against the judge is not patently motivated with malice in fact, the scale and degree of the illegalities are such that the Reference is deemed to be tainted with mala fide in law. For this reason, the Reference is hereby quashed.

'The show cause notice issued by the SJC derives its substance from this quashed Reference. Therefore, except for the underlying factual information of Mrs. Isa's ownership of the undeclared London Properties, the remaining contents of the said Reference are without foundation. Accordingly, the narrative in the notice alleging misconduct against the petitioner and the subsequent direction to file a response have lost force and cannot be sustained.

"Even the not denied/admitted underlying information about ownership of the London Properties by Mrs. Isa and her children requires further probe by the FBR on the point of absence of declared lawful sources for the purchase of such properties to maintain a Reference against the petitioner.

"An independent judiciary is certainly a necessity for any civilised society governed by laws to prosper and thrive. But in utmost good faith neither Judges nor the institution can retain the public trust when serious stigmas are cast on their integrity. Recalling the quotation from the Holy Quran at the start of this judgment, the institution cannot be perceived to be ignoring an unpleasant allegation of undeclared foreign assets of a family member of a Judge."

The court noted that "Reference suffers from grave legal defects. But the consequences of illegality of an impugned action are different from those following a finding of malice in fact. The illegalities in the present Reference are a result of its careless and casual preparation.

"These errors or defects do not erase Mrs. Isa's ownership of the London Properties, the primary fact which forms the basis of the Reference and which is not denied by the petitioner. Whilst the ownership of the London Properties is not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad require explanation. The matter of undeclared and unexplained foreign wealth of public office holders bears a stigma in Pakistan that these assets have been acquired unlawfully (a stigma which applies with even greater force since the PANAMA leaks on 03.04.2016). "Therefore, every public office holder including Judges of the Superior Courts, officers of the armed forces, elected representatives and public servants are accountable under the law." "The court declared that there is neither any fatal defect in the creation of ARU nor is there any unlawfulness in the appointment of Mirza Shahzad Akbar as SAPM Accountability." The judgment noted that "the petitioner has not produced any evidence before us, which demonstrates that either the petitioner or his family have been monitored or their communications have been intercepted in the above manner."

Copyright Business Recorder, 2020