Presidential reference: SCBA challenges court’s directions to tax authorities

ISLAMABAD: The Supreme Court Bar Association (SCBA) said the apex court’s directions to the tax authorities in the short order regarding Justice Qazi Faez Isa’s family tax returns were in the nature of legislation, and that too person specific.

The SCBA on Thursday filed additional grounds in support of their review petition against the Presidential Reference against Justice Qazi Faez Isa.

It fully adopted the reasoning and the conclusions drawn by Justice Maqbool Baqir and Justice Mansoor Ali Shah in their dissenting notes.

The lawyers’ top body submitted that the directions in paras 4 to 6 of the short order of the apex court, in the presence of the specific provisions of the Income Tax Ordinance, “are in the nature of legislation, and that too is 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.

The concerned Commissioner of Inland Revenue to whom the direction in para 4 was given was the same person namely Zulfiqar Ahmed, who had authored the letter dated 10-05-2019, showing his “preconceived mind” by adopting the findings of Zia Ahmed Butt, assistant commissioner and was one of the persons who allowed the respondents “illegal” access to the tax records of the petitioner [Justice Qazi Faez Isa] and his spouse.

It stated that in holding that the allegations of malice in fact levelled by the petitioner against the respondents fail, in paras 53 to 63 the majority judgment omitted to take into consideration facts or to consider all the proved facts cumulatively.

The bar stated that under Article 209(8) of Constitution, it is for the Supreme Judicial Council (SJC) and not the Supreme Court to issue a Code of Conduct, to be observed by the judges of the superior courts.

“However, the impugned judgment rewrites the Code of Conduct and that too retrospectively, by mandating that the failure of a judge not to make himself aware, or to make reasonable efforts to make himself aware or informed about the financial interests of his family members constitutes misconduct. Code of Conduct issued by the Supreme Judicial Council on 8th August, 2009 did not incorporate the Bangalore Principles of Judicial Conduct, though the draft of it pre-dated the Code by almost nine years. In fact, the adoption by the United Nations Economic and Social Council of the Bangalore Principles took place almost three years prior to the last amendment in the Code of Conduct.”

The bar contended that importing the Bangalore Principles into the Code of Conduct is contrary to the law declared by the Supreme Court in numerous cases.

“Holding that the failure of the part of the family members of a judge of Supreme Court to explain their assets may render a constitutional judge liable for misconduct in effect resurrects the reviled doctrine of guilt by association and subjecting a constitutional judge to vicarious liability on the alleged sins of his family members imperils the independence of the judiciary. It is also contrary to Article 4 of Constitution, the petition added.

The SCBA further contended that there was no positive law requiring constitutional judges of the superior courts to declare or inform themselves about the assets of their spouse or children nor is there such a requirement in the Code of Conduct.

“In fact, the Code of Conduct does not even require judges to declare their own assets through public or confidential statements or declaration,” the petition added.

Copyright Business Recorder, 2020