Background
In regard of the facts concerning Justice Isa’s case, relating to his wife’s properties in London,
- The government filed a reference against Justice Isa, claiming that he was guilty of misconduct, under Article 209 of the Constitution, for failing to disclose properties in the name of Justice Isa’s family members (in particular his wife).
- Justice Isa challenged this reference on the grounds that he cannot be held accountable for his (non-dependent) wife’s properties, acquired through independent financial means. And that, this is a tax issue at best, and does not amount to ‘misconduct’, as envisioned in Article 209 of the Constitution.
- Justice Isa claimed that information against him had been collected through illegal means, and the reference had been framed on the basis of mala fide and malice, since he had irked certain ‘powerful quarters’ through a series of past judgments.
- The government insisted that judicial accountability necessitates that Justice Isa account for his assets, and those of his immediate family members. And that the Supreme Judicial Council (SJC) has the jurisdiction to inquire into the matter.
Order – June 19, 2020
The honorable Court, was faced with a debilitating conundrum: the reference against Justice Isa suffered from prima facia defects and thus needed to be struck down; on the other, the Court was also acutely aware of the necessity to protect its public image as an institution that welcomes accountability of its members. Caught between this rock and a hard place, the order of the Court attempted to strike a balance.
- Justice Isa could no longer raise his primary defence of ‘mala fide’ and procedural defects anymore – since the proceedings before the SJC were then to be conducted in exercise of ‘suo moto’ powers (per Article 209(5) of the Constitution, which eliminates all procedural infirmities of the reference.
- The government of Pakistan (through the FBR) would conduct a detailed audit of Justice Isa’s family properties, and would have the opportunity to collect/present such additional information that was not available on the record earlier. That would include information which would date back beyond 5 years (a statutory period, which prohibits FBR from looking into older financial records).
- Even if no new (implicating) information came forth during the FBR proceedings, the SJC would still review the existing information provided by the government, and may choose to proceed under Article 209 of the Constitution.
- The ‘direction’ part of the honourable Supreme Court’s (majority) order would include no observations on malice or mala fide. It also had no comment on the legality and ambit of the Asset Recovery Unit.
Order – April 26, 2021:
The Supreme Judicial Council (SJC) decided not to proceed further against Justice Qazi Faez Isa who won the case recently which set aside the court’s earlier directive to the Federal Board of Revenue (FBR) to conduct an inquiry into three UK properties in the name of his wife and children. The SJC, headed by Chief Justice of Pakistan Gulzar Ahmed, decided not to pursue any further against Justice Isa in the light of the April 26 10-judge Supreme Court judgement.
By a majority of six to four, the apex court had overturned its June 19, 2020, majority order that required verification and subsequent findings by the tax authorities of the three foreign properties which, according to the now quashed reference, were not disclosed.
Consequently, the entire exercise conducted by the FBR was rendered null and void since the fresh order that came on a set of review petitions recalled and set aside the June 19 verdict that had quashed the presidential reference against Justice Faez Isa, but authorised the FBR to evaluate and later impose tax liability on Mrs Isa for possessing three properties in the United Kingdom.
SJC Chairman Justice Gulzar Ahmed, according to the June 19, 2020, short order by a 10-judge SC bench, which had taken up a number of petitions challenging the filing of presidential reference against Justice Isa, had to lay before the council a report furnished by the FBR for consideration, action or proceedings in relation to Justice Isa.
The SJC had to take up the FBR report under which it had ordered a tax penalty of Rs35 million on Sarina Isa on Sept 14, 2020, over non-declaration of the three offshore properties in her name as well as in the name of her children.
The SJC, which was to meet on April 14, postponed its meeting to April 28 to decide whether it should proceed afresh against Justice Faez Isa on the basis of FBR’s findings it had received on three offshore properties.
However, the SJC decided not to proceed any further after the Supreme Court’s short order which declared all the subsequent proceedings, actions, orders information and reports in pursuance of the directives issued through the June 19, 2020 verdict as well as the detailed reasons of that short order as illegal and without any legal effect.
The order had also made it clear that no forum, including the SJC, would consider or peruse any report, or order or hold proceedings or actions.
As a result of the fresh order, paragraphs 4 to 11 in the June 19 short order and the subsequent detailed judgement of Oct 23, 2020, were recalled.
These paragraphs were challenged by the petitioners who dubbed them superfluous, contradictory, excessive and unlawful and thus liable to be deleted from the short order.
In Search of Accountability: Justice Qazi Faez Isa vs The Supreme Court
Background In regard of the facts concerning Justice Isa’s case, relating to his wife’s properties in London, The government filed a reference against Justice Isa, claiming that he was guilty of misconduct, under Article 209 of the Constitution, for failing to disclose properties in the name of Justice Isa’s family members (in particular his wife). Justice Isa
Background
In regard of the facts concerning Justice Isa’s case, relating to his wife’s properties in London,
Order – June 19, 2020
The honorable Court, was faced with a debilitating conundrum: the reference against Justice Isa suffered from prima facia defects and thus needed to be struck down; on the other, the Court was also acutely aware of the necessity to protect its public image as an institution that welcomes accountability of its members. Caught between this rock and a hard place, the order of the Court attempted to strike a balance.
Order – April 26, 2021:
The Supreme Judicial Council (SJC) decided not to proceed further against Justice Qazi Faez Isa who won the case recently which set aside the court’s earlier directive to the Federal Board of Revenue (FBR) to conduct an inquiry into three UK properties in the name of his wife and children. The SJC, headed by Chief Justice of Pakistan Gulzar Ahmed, decided not to pursue any further against Justice Isa in the light of the April 26 10-judge Supreme Court judgement.
By a majority of six to four, the apex court had overturned its June 19, 2020, majority order that required verification and subsequent findings by the tax authorities of the three foreign properties which, according to the now quashed reference, were not disclosed.
Consequently, the entire exercise conducted by the FBR was rendered null and void since the fresh order that came on a set of review petitions recalled and set aside the June 19 verdict that had quashed the presidential reference against Justice Faez Isa, but authorised the FBR to evaluate and later impose tax liability on Mrs Isa for possessing three properties in the United Kingdom.
SJC Chairman Justice Gulzar Ahmed, according to the June 19, 2020, short order by a 10-judge SC bench, which had taken up a number of petitions challenging the filing of presidential reference against Justice Isa, had to lay before the council a report furnished by the FBR for consideration, action or proceedings in relation to Justice Isa.
The SJC had to take up the FBR report under which it had ordered a tax penalty of Rs35 million on Sarina Isa on Sept 14, 2020, over non-declaration of the three offshore properties in her name as well as in the name of her children.
The SJC, which was to meet on April 14, postponed its meeting to April 28 to decide whether it should proceed afresh against Justice Faez Isa on the basis of FBR’s findings it had received on three offshore properties.
However, the SJC decided not to proceed any further after the Supreme Court’s short order which declared all the subsequent proceedings, actions, orders information and reports in pursuance of the directives issued through the June 19, 2020 verdict as well as the detailed reasons of that short order as illegal and without any legal effect.
The order had also made it clear that no forum, including the SJC, would consider or peruse any report, or order or hold proceedings or actions.
As a result of the fresh order, paragraphs 4 to 11 in the June 19 short order and the subsequent detailed judgement of Oct 23, 2020, were recalled.
These paragraphs were challenged by the petitioners who dubbed them superfluous, contradictory, excessive and unlawful and thus liable to be deleted from the short order.
Safiah Niamat
AUTHOR
PROFILE