| Top court notes money laundering allegations against Justice Qazi Faez Isa, his wife ‘theoretical and speculative in content’ | President failed to notice legal, procedural defects in reference | Acts of ARU, federal govt in accessing property records of judge and his family cannot be classified as covert surveillance 

ISLAMABAD   -  A 10-judge bench of the Supreme Court of Pakistan headed by Justice Umar Ata Bandial Friday announced a224-page reserved judgment, which contains the separate notes by Justice Faisal Arab and Justice Yahya Afridi.

In its judgment, the apex court noticed that no authorisation for investigating the affairs against Justice Qazi Faez Isa was given by the President and Prime Minister instead the authorisation of the law minister was obtained.

It was June 19, when the seven out of the ten judges of the bench referred the matter to the Federal Board of Revenue (FBR) for initiating tax proceedings against Justice Isa’s spouse and children for not disclosing their UK properties to the tax authorities while filing their returns.

In this matter, the identical petitions were filed by Justice Qazi Faez, Pakistan Bar Council, Supreme Court Bar Association, Bar Councils & Association of Punjab, Sindh and Balochistan and Abid Hassan Minto, and IA Rehman against the presidential reference.

The main judgment, authored by Justice Umar Ata Bandial, noted that there was neither any evidence nor the nomination of a predicate offence in the Reference to support the allegation of money laundering against the petitioner. Likewise, there was no evidence that the petitioner had violated the regime under FERA and even the relevant provisions from the said law were not specified in the Reference.

Justice Umar Ata Bandia wrote in the opening remarks of the detailed judgment, “Justice is an article of faith in our religion, whether that may be against our kith and kin or against the rich or poor.” He added, “However, justice is an abstract concept attainable only where the scales of justice are held by persons (the Judges) who balance these equitably without regard to their personal desires. Indeed, the latter is the duty of the Superior Judiciary by virtue of their Oath to dispense justice without any fear or favour, affection or ill-will (ref: Third Schedule to the Constitution, Oath for Judges of the Superior Courts). 

The verdict stated, “There is no allegation or material on record suggesting that the petitioner or Mrs. Isa transferred money to the United Kingdom via illegal means/methods. Therefore, this novel argument is theoretical and speculative in content.”

It added that the President received inadmissible advice from the AG and Law Minister, the chief architects of the Reference, on the strengths and weaknesses of the Reference. The President did not get considered, fair and objective advice from a third party on the questions of law noted in the Reference. The President failed to notice various legal and procedural defects in the Reference.

The judgment maintained that the President did not form a considered opinion under Article 209(5) of the Constitution. As there was no valid authorisation for the investigation, the respondents (federation) illegally accessed the tax records of the petitioner and Mrs Isa.

It stated that fairness and objectivity dictate that those involved in the investigation and framing of the reference may brief the President but cannot advise him on whether it is maintainable and appropriate for inquiry by the SJC. This is because there is a clear conflict of interest for the architects of the reference to opine on the weaknesses of their work. But this is precisely what happened in the present Reference.

It also mentioned that Firdous Ashiq Awan, former Special Assistant to the Prime Minister on Information made contemptuous remarks against Justice Qazi Faez in public. These illegal acts of the respondents depict their utter disregard of the law.

The apex court noted that filing a reference under Article 209 of the Constitution against a judge is a matter requiring utmost prudence and caution by its framers. However, in the present case the actions of the respondents have violated not only the express provisions of the Constitution, the ROB, the Ordinance and AMLA but have also ignored the law laid down in the ex-CJP Iftikhar Muhammad case, which specifically set out certain safeguards to protect superior court Judges from arbitrary actions of the Executive.

“In these circumstances, the errors committed by them in the preparation and framing of the Reference cannot be termed as mere illegalities. Instead, in the context of Article 209 their errors amount to a wanton disregard of the law. Being arbitrary and illegal these act have ceased to be actions contemplated by any of the applicable laws such as the Constitution and the Income Tax Ordinance,” said the judgment.

 It further said that As a result, although the preparation and framing of the Reference against the judge is not patently motivated with malice in fact, the scale and degree of the illegalities are such that the Reference is deemed to be tainted with mala fide in law. For this reason, the Reference is hereby quashed.