SC dismisses presidential reference against Justice Qazi Faez Isa

ISLAMABAD: The Supreme Court of Pakistan on Friday dismissed the presidential reference against Justice Qazi Faez Isa in the Supreme Judicial Council and accepted his petition seeking the reference's dismissal.

"[The reference] is declared to be of no legal effect whatsoever and stands quashed, and in consequence thereof the proceedings pending in the Supreme Judicial Council against the Petitioner in CP 17/2019 (including the show-cause notice dated 17.07.2019 issued to him) stand abated," read the court's short order.

The SJC had initiated the proceedings over Justice Isa's alleged non-disclosure in wealth returns of three London properties acquired on lease in the name of his wife and children between 2011 and 2015.

A ten-member larger bench of the apex court headed by Justice Umar Ata Bandial and comprising Justice Maqbool Baqar, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Munib Akhtar, Justice Sajjad Ali Shah, Justice Syed Mansoor Ali Shah, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed heard the case, reserving the verdict before it was announced after 4pm.

At a glance:

- Presidential reference quashed as it has "no legal affect", in a majority verdict

- Justice Yahya Afridi sole judge to dissent from verdict

- All information collected by authorities on London properties declared null and void

- Show cause notice issued for "writing letters to President Arif Alvi" withdrawn

- 7 of 10 judges on bench order Federal Board of Revenue to review documents submitted by Justice Isa's wife

- Income tax commissioner directed to send notices to Justice Isa's wife, children in London within 7 days

- Wife, children to respond with explanation of nature and sources of funds used to acquire properties

- Proceedings will not be delayed over unavailability of a respondent, so reply must be submitted timely

- Proceedings to conclude within 60 days of receiving notices, order to be issued within 75 days by commissioner

- FBR chairman to submit entire record of proceedings to SJC

- If no report by the chairman is received within 100 days of the court order, SJC will demand explanation

The case was wrapped up after Justice Isa's spouse provided the money trail pertaining to her foreign properties and the Federal Board of Revenue provided its input on the matter.

Justice Isa, in his petition challenging the reference, had requested that the apex court declare that the Asset Recovery Unit (ARU) formed by the government to look into the properties had no legal standing and therefore the actions taken by the unit with regard to the reference against him and his family are illegal.

The petition had contended that no proper research was ever conducted and the property details gathered were simply the product of online surveillance.

After the verdict was announced, former attorney general Irfan Qadir, speaking to Geo News, said that mala fide intentions and misunderstanding are two different things.

"Mala fide intentions are made when there is substantial evidence, but misunderstanding took place in this case because properties were not declared and some people were of the opinion that non-declaration of the  wife’s assets was misconduct.

"After Justice Isa’s wife clarified in court that her husband had no link with the [London] properties, the reference was rendered baseless and which lead to its dismissal," said Qadir.

'No one's victory or defeat'

Reacting to the apex court order, Special Assistant to Prime Minister on Accountability Mirza Shahzad Akbar in a media briefing said the government is "satisfied" with the short order and believes that the SJC is the proper forum to deal with matters pertaining to judges.

On the occasion, Federal Information Minister Shibli Faraz said that this is a "sensitive matter" and they will not take any questions on it after the briefing is over.

“When the order was issued, an impression was created as if this was victory for one and defeat for another [side]. This is no one's defeat or victory," Akbar said, adding that the outcome was a product of a "democratic society".

"I want to make it clear that the government has the highest regards for the judges and the judiciary,” Akbar added.

“It was also said that the court has declared the Asset Recovery Unit as illegal but I couldn’t find any reference to this in the order,” he said.

The premier's aide said that for the last 13 months, a lot has been said and written about the matter but the government "never made any comment" in this regard.

On sending the matter to FBR, Akbar said that the federal government had already agreed to the proposal given by the Supreme Court but the petitioner rejected it.

“PTI, Prime Minister Imran Khan and I, as an advocate, strongly believe in the independence of the judiciary.”

Opposition demands resignation

Meanwhile, the opposition parties in a joint statement, welcomed the SC verdict and demanded the president and the prime minister resign from their posts for filing a reference based on mala fide intentions.

“President Arif Alvi, Prime Minister [Imran Khan] should resign for filing an illegal and unconstitutional reference against a judge of the Supreme Court.”

The statement was issued by PPP, PML-N, ANP, JUI-F, Jamat-e-Islami, Qaumi Watan Party and National Party.

“The truth about the ARU has come out and it should be shut down in light of the SC order.”

“The government tried to malign the judiciary by filing a reference based on mala fide intentions against the judge,” it said, adding “this was an attempt to pressurise the judiciary.”

The short order

Justice Umar Ata Bandial, Justice Manzoor Ahmad Malik, Justice Faisal Arab, Justice Mazhar Alam Khan Miankhel, Justice Sajjad Ali Shah, Justice Munib Akhtar and Justice Qazi Muhammad Amin Ahmed ruled that within seven days of the verdict, the "concerned Commissioner of Inland Revenue shall himself (and not some other officer) issue appropriate notices under the Income Tax Ordinance" to Justice Isa's wife and children.

The notice will direct them to "offer an explanation regarding the nature and source of the funds whereby the three properties in the United Kingdom that are in the names of the spouse and the children were acquired".

According to the court order, the respondents shall submit their replies and any "such material and record as is deemed appropriate".

"In case any of them is outside the country, it shall be the responsibility of such person to timely file a response, and the proceedings before the Commissioner shall not be adjourned or delayed for the reason of non-availability in Pakistan of such person," stated the order.

Upon receipt of the response, the Commissioner shall "give an opportunity of hearing to the respondents in person or through an authorised representative/counsel".

"The proceedings shall be concluded before the Commissioner within 60 days of the date of receipt of the notices [...] and the order shall be issued by him within 75 days of the said date of receipt, and no adjournment or extension in time whatsoever shall be given," it was further stated in the order.

Subsequently, the FBR chairman shall submit a report duly signed by him to the SJC, ensuring that the entire record of the proceedings is appended.

"If, within 100 days from the date of this Order, no report as aforesaid is received by the Secretary from the Chairman, FBR, he shall inform the Chairman of the Council accordingly and shall, if so directed by him, write to the Chairman, FBR requiring an explanation as to why the report has not been received," the order stated.

'On the wrong bus'

The petitioner's lawyer, Munir A Malik, concluded his arguments in court today by saying that the federation had "gotten on the wrong bus" in the case.

Malik urged the court to dismiss the reference against the judge. He said that a website had been used to search for properties in London. The lawyer told the court that if one wanted to search properties in London, he/she had to pay for the privilege. 

He said that the website sends a payment receipt to the person who uses it to search for properties, via email. He said that British-Pakistani lawyer Zia-ul-Mustafa, who had searched for Justice Isa's alleged assets, had received three copies of the high commission's verified properties. 

"Copies of politicians' properties searched were attached as well [in documents submitted]," he said. "If the government provides receipts as well then it will be revealed who searched for the properties," he added. 

Malik said that if the search for the properties was conducted by the ARU, then it should provide receipts. He said that it seemed as if the ARU had only facilitated the search. 

"The government only wants to remove the author of the Faizabad dharna case," noted Malik. 

Justice Isa's wife submits money trail

A day earlier, Justice Isa's wife provided the money trail for the purchase of the three properties in United Kingdom (UK), saying that 700,000 sterling pounds had been transferred from her personal account through a private bank in Karachi.

Zarina Montserrat Khoso Carrera recorded her statement via video link before the court and submitted that details pertaining to her accounts were available with the State Bank of Pakistan (SBP).

While recording her statement, the lady thanked the apex court for providing her with such an opportunity. “I am very much nervous as this is my first experience before the court, but I will try my best to follow your instructions,” Carrera said, adding that it has been a critical time for her as her father was terminally ill.

She said that she was married to Justice Qazi Faez Isa in the year 1982, and also showed her birth certificate and the old National Identity Card, saying her first name was Zarina. She said she did not know that she would buy properties in London after 21 years of marriage.

Justice Isa's wife submitted that she got her computerised identity card in the year 2003 and her name remained the same, adding that at that time her husband was not a judge. She said that she was entitled to a Spanish passport, as her mother was Spanish.

She said that when her visa expired, she applied for a fresh visa. When she got it, her husband was not a judge, but a lawyer. “So the allegation that I used the office of my husband for acquiring the visa was baseless,” Carerra contended.

She stated that in the year 2020, she was granted a one-year visa and prior to that, she was harassed and granted visa for a very limited period of time.

Carerra said that she bought the first property in UK in the year 2004, adding that she was employed at an American School in Karachi and at that time, one Rehan Naqvi used to deal with her tax matters.

She showed the court the certificate issued by the tax authorities in the filing of her tax returns, adding that when her tax record was transferred from Karachi to Islamabad, she asked the FBR in that regard; however, she alleged that the FBR did not reply to her request.

She said that she had agricultural lands which were in Jaccobabad (Sindh) and Dera Murad Jamali (Balochistan) while her father used to look after the land and the government was well aware of all that.

Justice Isa's wife said that Rehan Naqvi had advised her to open a foreign account, which she did and through that account, she transferred the money abroad for purchasing the properties. As proof, she showed the court the record of her foreign currency account, saying she had to face great difficulties in seeking its details as the bank didn’t maintain a 10-year old account.

The spouse of Justice Isa submitted that from 2003 to 2013, the whole amount was transferred from these accounts to London for purchasing these properties, adding that the money was transferred in her name and from her account as well.

Carerra said that she bought one property for 236,000 sterling pounds, another was purchased in 2013 for 245,000 sterling pounds — a flat in which her son was living — while another property, which was in her and her daughter’s names, was purchased for 270,000 sterling pounds.

“All documents which I have shown are genuine and authentic and the London Bank Account is also in my name,” she added.

She said that now she was filing tax returns both in the UK and Pakistan, adding that she had already filed tax returns of London properties in the year 2018.

'A trial of our institution'

The court, while expressing satisfaction over the statement, told her that in order for the matter to be examined on merit, she would have to approach the Federal Board of Revenue (FBR) or the Supreme Judicial Council (SJC), and a decision in that regard would be given by the tax authorities.

Justice Umar Ata Bandial said that they had no jurisdiction to hear the matter on merit. The judge advised her to present her all documentary proofs to the aforementioned forums as those were competent to decide her case.

“We felt that you have sufficient documents to present and I am sure that you will be heard properly; therefore, I wish you present these documents before the relevant forums,” Justice Bandial told the lady.

“Why was I not asked earlier and I waited for 13 months while my son was subjected to harassment in London,” Carerra questioned. She said that she was not asking for any privilege, but she should be treated as an ordinary citizen in Pakistan.

Justice Bandial concurred that she should be treated with respect and dignity, adding that she was a brave lady and hoped that she would be able to address her matter effectively.

“I must tell you one thing, we, as judges, are answerable for our actions in private and public life; therefore, we are much more accountable than other people, as we are holding other people accountable,” Justice Bandial told Justice Isa's wife. “This not just a trial of your husband and your, but a trial of our institution,” he added.

Justice Maqbool Baqar remarked that what was going on in the country in the name of accountability would also be looked into. He said destruction (of institutions) was under way in the country in the name of accountability and they would write (in the verdict) on that subject also.

SJC can review anyone's performance: Naseem

Justice Baqar asked if the SJC could review the performance of the president to which the federation’s lawyer, Farogh Naseem, said that it (Council) has the authority to review anyone’s performance.

Later, the court directed Naseem to submit before it in a sealed envelope the record of the 2018 tax returns filed by Carerra.

Justice Umar Ata Bandial told Farogh Naseem that the lady had also complained about the FBR's attitude, to which the counsel for the federation submitted that if the complaint was proved true, it could be directly lodged with the prime minister.

Meanwhile, Farogh Naseem submitted before the court that Khalid Ranjha, Irfan Qadir, Additional Attorney General Chaudhry Aamir Rehman, and Sohail Mahmood, who were to represent president, prime minister, as well as other respondents, have adopted his arguments; hence they will not be arguing before the court.

At this, the court adjourned the hearing for Friday (today) wherein Munir A Malik, counsel for Justice Qazi Faez Isa, was to argue in rebuttal.