SC raises question: Why court has to hear govt when it has not filed review petition?

ISLAMABAD: Justice Mansoor Ali Shah questioned why the Supreme Court (SC) has to hear the federal government when it has not filed a review petition against the SC judgment on the Presidential Reference. A 10-member larger bench, headed by Justice Umar Ata Bandial, on Friday, heard the review petitions of Justice Qazi Faez Isa, the Supreme Court Bar Association (SCBA), the Pakistan Bar Council (PBC), and the provincial bar councils and associations, and the petition of Sarina Isa against the apex court judgment on Presidential Reference.

Justice Qazi Faez Isa, Sarina Isa, and the bar councils/associations have challenged the SC order of directing the FBR to investigate tax record of Sarina Isa.

However, the federal government filed no review petition against the SC judgment.

Justice Mansoor, while addressing the Additional Attorney General (AAG), said the federal government had filed the Presidential Reference [against Justice Isa] which was quashed and the proceedings before the Supreme Judicial Council were abated.

Justice Mansoor further said as the federal government did not file a review petition against the SC judgment “then in this scenario what is the locus standi of the government?”

He further asked: “Has its [government] role not ended?”

He asked the AAG: "Since it [the government] is not a party [in review petitions] then why we hear you?”

AAG Amir Rehman, who is representing the federal government, argued that the apex court under Article 187 has vast power to issue orders or decrees as may be necessary for doing complete justice in any case or matter pending before it, adding, the Court directed the FBR to probe the matter and place it before the SJC. He said, in term of the SC order, the FBR submitted a report before the SJC. “It is a piece of information, which the Supreme Court can’t quash, nor the information could be abated, nor the information can be withdrawn,” he said.

He argued that in eventuality the Supreme Court could retract its order, but it could not withdraw the report.

Justice Muneeb questioned whether under the law the report will cease to exist from the inception or the passing of the order if the review petitions are allowed.

The AAG replied it was not the executive order which can be quashed.

He said the information based on facts will exist.

Justice Muneeb then asked him: “You mean to say that in physical sense it will exist. Under what law it will hold ground?”

Amir Rehman stated the report will exist, adding, the SJC under Article 209 also has power to take suo moto on any information, which not necessarily mean that it should be available before it in physical form.

The facts cannot be destroyed and the SJC can consider the facts, he said.

Justice Bandial observed that the facts are facts, which were collected on the order of the apex court, asking, if the order does not exist then how it could be considered?

He stated that judges have not read the FBR report.

Justice Muneeb noted that the matter pertains to the law point. He asked whether or not the SJC can consider the report if they [the judges] declare that the order to FBR for collecting information [about Sarina Isa's tax record] was wrong?

The bench directed the AAG to answer the questions raised by Justice Mansoor Ali Shah and Justice Muneeb Akhtar. The AAG said Sarina Isa was given an opportunity to make a submission before the larger bench before an order was passed.

He said according to the transcript of Sarina Isa’s statement, dated June 18, 2020, she stated: “Why no one in the beginning asked her about the UK properties, and why not the FBR contacted me regarding tax returns?”

He further said that according to the transcript, which is part of the Court’s record, Sarina Isa also stated: “I waited for 13 months but no one contacted me about the properties.” He referred to para 99 of the SC judgment and argued that the judgment also talked about Sarina Isa's request. Amir Rehman said the SJC is a standing body and it is not constituted when a complaint is received, adding, “otherwise, the constitutional provision will become redundant if that is the case.” The bench directed the AAG to conclude his arguments by Monday (April 26).

Copyright Business Recorder, 2021