Justice Mansoor Ali Shah, a member of the 10-judge bench hearing the Presidential Reference, questioned if the President of Pakistan can put whole machinery in motion to supplement the complaint filed against Justice Qazi Faez Isa.
He asked from Justice Isa's counsel; "Can the President of Pakistan [Arif Alvi] put whole machinery in motion that two paras application is not enough or ask the complainant that the information provided in the complaint is not enough to form an opinion for sending reference therefore provide more information or can he put all the departments to investigation and provide material to supplement the complaint?"
The bench headed by Justice Umar Ata Bandial on Tuesday heard identical petitions challenging the Presidential Reference against Justice Isa for allegedly not disclosing his foreign properties in wealth statements. Besides Justice Isa, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils & Association of Punjab, Sindh and Balochistan, and Abid Hassan Minto and IA Rehman have challenged the Presidential Reference.
Babar Sattar, who is representing Justice Isa to the extent of Section 116 of Income Tax Ordinance 2001, contended that Article 209 of Constitution is not to protest against the law but to protect the tenure of judges unless there is clear evidence of misconduct.
The counsel pleaded that the President has drawn interference that as the properties were in the UK; therefore there is violation of the Foreign Currency Protection Account Ordinance, 2001 and the money was laundered. However, there is no material evidence placed before the President that Justice Isa had sent money abroad for the properties.
Sattar argued that State Bank of Pakistan and FBR reports were not placed before the President to seek his opinion. There has to be some determination that the property purchased was from the proceeds by the petitioner.
He stated that unauthorized access to the tax record of Justice Isa and his wife was a violation of Section 116. The FBR has no advisory jurisdiction, but it has assessment, appellate and revisional jurisdiction under the Income Tax Ordinance (ITO) 2001. Assistant Commissioner FBR on the letter from Asset Recovery Unit (ARU) tendered an opinion, which is not permissible. Justice Maqbool Baqir noted that unauthorized disclosure is taken very seriously under the Section 198 of ITO.
Justice Muneeb Akhtar observed that there is no complete ban on disclosing information of taxpayers as the exception is given under Section 216 of ITO, which says; "As may be required by any officer or department of the federal government or of a provincial government for the purpose of investigation into the conduct and affairs of any public servant, or to a court in connection with any prosecution of the public servant arising out of any such investigation."
About ARU (Asset Recovery Unit), the counsel contended that there is confusion over the unit. He said that the head of the ARU who is special assistant to the PM is not an officer of the federal government as per Article 260 of Constitution. He submitted the ARU was not also authorized to seek tax information of petitioner's wife because she is not a public servant, adding that the spouse is independent according to the ITO.
The inspection of the petitioner's tax record has to be done by the regular Assistant Commissioner who was delegated power to do so by relevant commissioner and not by the director general International Tax Operation Unit of FBR. The AC not only provided the information but also formed opinion which was reproduced in the Presidential Reference. It means that the President did not apply his own mind independently.
Justice Bandial asked the counsel not to go into minute details or technicalities whether the AC was authorized or not to disclose information which went right up to the President. Sattar responded that almost every day, the high court on writ petitions not only issues notices to the public officers for passing orders for that they were not authorized under law and also strikes them down on the basis of the jurisdiction.
He argued when the judge of the apex court is put on trial under Article 209 by the President then he has to apply his independent mind. Justice Bandial said, "You are going into procedural matters." Sattar replied that it is not the procedural issue but the jurisdiction issue. Whether the President has to form his opinion on the information provided by the complainant or to rely on it? he questioned.
Justice Muneeb said if a competent authority sends reference to the Supreme Judicial Council then it is bound to act. Sattar responded if the authority sends something to the SJC against the law then it could not be acted upon.
The case was adjourned until today (Wednesday).
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