ISLAMABAD: Two judges of the court apex find allegations against Justice Qazi Faez Isa in the presidential reference “baseless, misconceived and mala fide”.
Justice Maqbool Baqir and Justice Mansoor Ali Shah on Wednesday released their dissenting notes.
Justice Yahya Afridi had already expressed his disagreement with the majority judgment announced on October 23rd.
A 10-member bench on 19-06-2020 through a Short Order unanimously quashed the presidential reference, and abated the proceedings before the Supreme Judicial Council (SJC) against Justice Qazi Faez Isa.
However, the majority (seven judges) directed the commissioner FBR to issue notices under the ITO to the spouse and children of Justice Qazi Faez regarding the acquisition of the three foreign properties.
While the Council was asked to consider the matter by invoking its suo moto powers with or without there being a report filed by the chairman FBR.
Justice Maqbool Baqir wrote: “I found that the allegations against the petitioner were wholly unfounded, baseless, frivolous, misconceived and mala fide, and the petitioner (Justice Qazi Faez) was right in claiming the purported Reference to be a product of animosity, malice of law as well as of facts and that it streams from the ill-will harbored by some functionaries of the executive against the petitioner.”
“Despite commissioning the entire government machinery, to somehow ferret some excuse to proceed to dislodge the petitioner, and misusing the government departments, and resources, in unconstitutional and unlawful manner, in that pursuit, including covertly surveilling the petitioner, and his family, the official respondents have neither been able to show any illegality or misconduct on the part of the petitioner, nor that the wife and children of the petitioner are his dependents,” he further stated.
He wrote that the petitioner has not misconducted himself and has no concern, either with the properties held by his spouse and children in London, or their tax affairs, if any, no question of public importance with reference to the fundamental right, amenable before this Court under Article 184(3) of the Constitution, remained to be decided, or dealt with by this Court.
Justice Mansoor Ali Shah noted that “the proceedings initiated through short order after the quashment of the reference against Justice Qazi Faez Isa would mean that the SJC must now consider, if a judge can be made vicariously liable for
misconduct for his family’s affairs.
The spouse and children of the petitioner judge like all other citizens of Pakistan are independent persons and enjoy an inalienable right to the protection of law.
As they were not party to the instant proceedings and were never summoned or made a party to the proceedings by the Court, any adverse order against them, will deprive them of their inalienable right to due process under the Constitution and the law, and will contravene the well-entrenched and deep rooted principle of audi alteram partem.”
He also wrote “In the absence of any allegations of corruption against the petitioner judge or of his holding foreign properties in the names of his wife and children as a trustee or a benamidar, this Court, and for that matter the Council, have no concern with the assets and properties of the spouse and the children of the petitioner judge.
“The FBR does not require any direction from this Court for taking any proceedings against any individual (including a constitutional court judge or his spouse and children) for a tax violation under the Income Tax Ordinance, 2001, if any.
“Similarly, the Council is also free and independent to exercise its suo moto jurisdiction against any judge of the constitutional courts, when so required.
“Under Section 122 of ITO an assessment order cannot be reopened after a lapse of five years by the FBR. Also, regulating the Tax Commissioner to function and perform his duties within a prescribed time-line,
which is not so provided under the ITO amounts to entering the realm of judicial legislation.”
“This Court cannot, it is submitted with respect, direct someone to file a complaint against a constitutional court judge before the Council and then make the Council consider the said complaint. This would have a far reaching effect as it would dismantle the independence and neutrality of the Council and the constitutional scheme under Article 209 that safeguards a constitutional court judge,” he stated.
“The observation that the right to appeal under the ITO would be available to the spouse and children of the petitioner judge, while simultaneously, the Council may also commence proceedings - can lead to
conflicting results and thereby, may render the appeal under the ITO otiose and futile.
Justice Mansoor also noted: “The chairman, ARU decides to proceed for accountability of the judges of constitutional courts, and not for recovery of their alleged foreign assets as per the so-called mandate of the ARU, for he decides not to inquire about the alleged properties of another judge named in the same complaint, while noting that the said judge has already resigned.
The members of the ARU make compliance of the directions of the chairman, ARU and share with him the confidential information available in the record of their departments, by violating the provisions of the law under which those departments function.”
He also wrote that the blatant violations of the law and Constitution by the chairman, and legal expert of the ARU, the officers of FBR, FIA and NADRA, the Law Minister and the prime minister; undue haste in processing the matter; dubious credentials and ring of anonymity around Waheed Dogar (the complainant); oddity of approaching ARU instead of the Council; and rushed and mechanical approval of the summary by the prime minister, when read in the background of the assertions made by the current ruling political parties (PTI and MQM) in their review petitions filed against the Faizabad Dharna judgment, lead to a clear and a convincing finding that the whole process initiated under the garb of accountability of the petitioner judge suffers from more than mere malafide of law and jumps up into the realm of malafide of fact also.
“However, all the government actors are held responsible, but the buck stops with the prime minister in a constitutional parliamentary democracy.
“All the acts and steps from the entertainment of the complaint till the sanction of the “summary” for placement of the “information” before the president by the prime minister are declared illegal, without jurisdiction, malafide of law and fact, and thus unconstitutional and of no legal effect.
“While, the acts of the president approving the advice of the prime minister, and signing and sending the reference against the petitioner judge are declared without jurisdiction and coram non judice, and thus unconstitutional and of no legal effect.”
Copyright Business Recorder, 2020
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