The Supreme Court has observed that allegations which were not part of the Presidential Reference against Justice Qazi Faez Isa were included in the Supreme Judicial Council show cause notice.

Justice Sajjad Ali Shah noted: "The allegations those were not in the Presidential Reference were made part of the show cause notice [to Justice Isa] after the rejoinder [of Attorney General for Pakistan]."

A 10-member Full Court, headed by Justice Umar Ata Bandial, on Monday heard identical petitions challenging the Presidential Reference against Justice Isa for allegedly not disclosing his foreign properties in wealth statements. Besides the apex court judge, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils & Association of Punjab, Sindh and Balochistan and Abid Hassan Minto and IA Rehman have also challenged the Presidential Reference.

Justice Yahya Afridi noted that the Assistant Commissioner FBR report mentioned the breach of Section 116 (1) of Income Tax Ordinance (ITO), 2001. Babar Sattar Advocate responded that the allegation is a misdeclaration under Section 116, adding that as per the report the petitioner was not required to declare the properties of his spouse and children. It also does not say that the properties were held by the petitioner or some on his behalf held as 'benami'. Money for the properties was neither provided by the petitioner nor were those in his possession any time. It also does not say that the violation of Citizenship Act was committed by his spouse. Sattar, is representing Justice Qazi Faez but to the extent of Section 116 of Income Tax Ordinance 2001.

Justice Baqir noted that nothing in the report can be alleged in the reference. Sattar said the federation levelled several other allegations against the petitioner such as money laundering and transfer of foreign exchange. Justice Ata Bandial said that the SJC will look into allegations so that the judge should be blameless.

Justice Isa's counsel argued that this is the case of two vicarious liabilities. The story is painted with the "Panama brush" and the relevant laws and the facts have been disregarded. The Panama Papers case judgment relied upon the rejoinder. The federal government citing the case of former PM tried to apply Article 62/63 to his client, whereas these are for the members of the assembly. He said; "You can't take position on morality," as the Supreme Court is court of law and not a court of morality.

The President has come up with a unique interpretation of Section 116. Justice Isa is a regular taxpayer and has not declared assets of his wife and children in his wealth statement as it was not required under law. He put a question before the bench if a judge of the Supreme Court can be proceeded against because of misconduct committed in High Court and he himself replied that he can't be proceeded because the elevation in SC judge is the fresh appointment.

Sattar also argued that the reference and the President's opinion suffer from illegality. Justice Maqbool Baqar asked him, "You mean to say that the contents of the reference do not meet the threshold; therefore, it should not have been sent to the SJC." The counsel apprised that there was nothing before the President regarding money laundering and the foreign exchange.

Sattar contended that the complaint filed by a private person, Waheed Dogar, was that Justice Qazi Faez has not mentioned three of properties, which are located in the United Kingdom, in his wealth returns. He told that there was nothing before the President of Pakistan that the children were not dependent and non-resident in Pakistan; therefore, they are not required to file the tax return.

Responding to Justice Baqir's query about the status of Asset Recovery Unit (ARU), Sattar told the bench that the federal cabinet had approved to review the pending cases related to tax matter. Sattar said that due process is not followed in this case. The judge is also a citizen and enjoys the fundamental rights, he said adding that under Article 209 of Constitution, the fundamental rights of judge are further protected. Justice Baqir noted that due process under Article 10A can't be bypassed.

Copyright Business Recorder, 2019