ISLAMABAD: The Supreme Court by a majority of six to four set aside and recalled its order dated 19th June 2020 directing the Federal Board of Revenue (FBR) to investigate the tax record of Sarina Isa, the wife of Justice Qazi Faez Isa.
A 10-member larger bench, headed by Justice Umar Ata Bandial, and comprising Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Qazi Muhammad Amin Ahmed, and Justice Aminud Din Khan, 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’s judgment on the Presidential Reference.
The bench, on Monday, after hearing the arguments of Additional Attorney General Amir Rehman (AGP), who represented the federation, for almost two hours on review petitions reserved its order, which it announced after one-and-a-half-hours.
The majority judges, including Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Khan Miankhel, Justice Mansoor Ali Shah, and Justice Aminud Din Khan allowed the review petition of Justice Qazi Faez Isa against the SC judgment on the Presidential Reference.
Justice Umar Ata Bandial, Justice Sajjad Ali Shah, Justice Munib Akhtar, and Justice Qazi Muhammad Amin Ahmed dissented with the main judgment.
Justice Faez Isa, while interacting with the media persons and lawyers, who congratulated him, said this is not his victory, but of the whole nation.
“Grateful to Almighty Allah and thankful to all of you for your support,” he added.
The order of majority judges said; “For the reasons to be recorded later, Review Petitions are allowed and the directions contained in paras 4 to 11 of the impugned short order dated 19.06.2020 passed in Const. Petition No.17/2019 and other connected matters, along with supporting detailed reasons given in the majority judgment of the same date, are recalled and set-aside.
“All the subsequent proceedings, actions, orders, information and reports in pursuance of the directions contained in the short order dated 19.6.2020 and the detailed reasons thereof, are declared to be illegal and without any legal effect. Resultantly, any such proceedings, actions, orders or reports cannot be considered or acted upon and pursued any further by any forum or authority including the Supreme Judicial Council,” added the order.
Justice Yahya Afridi also allowed all review petitions, except of Justice Qazi Faez Isa, and recalled the directions contained in paragraphs No 4 to 11 of the order dated 19.06.2020 and detail judgment dated 23.10.2020 passed.
“Consequently, all the subsequent proceedings, actions, orders and reports made in pursuance to the said directions are declared to be of no legal effect and/or consequences.”
A 10-judge bench on 19-06-2020 through a Short Order unanimously quashed the presidential reference and abated the proceeding before the Supreme Judicial Council (SJC) against Justice Qazi Faez Isa. However, the majority (seven judges) – Justice Umar Ata Bandial, Justice Manzoor Ahmed Malik, Justice Faisal Arab, Justice Mazhar Alam Miankhel, Justice Sajjad Ali Shah, Justice Muneeb Akhtar and Justice Qazi Mohammad Amin – directed the Commissioner FBR to issue notices under ITO to the spouse and children of Justice Qazi Faez Isa regarding the acquisition of the three foreign properties.
While the Council was asked to consider the matter by invoking its suo motu powers with or without there being a report filed by the chairman FBR.
Justice Maqbool Baqar, Justice Mansoor Ali Shah, and Yahya Afridi had disagreed with the majority judgment and wrote separate notes.
Sarina Isa in her petition prayed to recall/set aside Order dated 19th June 2020 and set aside majority judgment and declare all proceedings taken by Zulfiqar Ahmad to be void and set aside/strike down his order dated 14th September 2020.
Sarina stated that the top court cannot legally mandate her to do what the law does not require her to, (i) provide source of funds to FBR for properties acquired in tax years 2004 and 2013 for which the prescribed limitation periods have expired; (ii) provide income information in relation to tax years for which petitioner’s assessment orders have attained finality; (iii) provide information to the FBR without any proceedings pending against the petitioner; (iv) enable the FBR to conduct a roving inquiry into the tax affairs of the petitioner; (v) provide information about foreign currency accounts which are protected by special laws, and such special laws prevail over the general law – the Income Tax Ordinance, and which it specifically excludes; and (vi) get a certificate of good behaviour from the FBR.
The Supreme Court Bar Association (SCBA), in its review petition, stated that the apex court’s direction to the tax authorities in the short order regarding Justice Qazi Faez Isa’s family tax returns was in the nature of legislation and that too person-specific.
Thus, the directions are without jurisdiction when these have been issued to the very tax authorities, who disclosed information to persons conducting an “investigation” that was not duly sanctioned or was being carried out in accordance with law as observed in para 85 of the impugned judgment.
President Arif Alvi had filed a reference against Justice Faez Isa.
It was alleged by the federal government that Justice Qazi Faez Isa had acquired three properties in London in the name of his wife and children between 2011 and 2015 but did not disclose them in his wealth returns.
Justice Isa contested the allegation, saying he was not a beneficial owner of the flats — either directly or indirectly.
The Pakistan Bar Council Vice-Chairman, Khush Dil Khan, in a statement, on Monday, said that the judgment would help stop “onslaughts” of the executive or other authorities against independent judges in future.
“The Supreme Court has proved that the judiciary is independent. This judgment would strengthen the principle of supremacy of the Constitution, the rule of law, and the independence of the judiciary. The whole legal community has welcomed this judgment and it is our collective success,” it said.
Copyright Business Recorder, 2021
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