SC dismisses presidential reference against Justice Isa

Our Correspondent

–Full court terms reference against senior judge ‘invalid’, withdraws show cause notice issued last year by Supreme Judicial Council

–Apex court orders Inland Revenue Commission to ask judge’s wife to explain nature and source of funding for buying foreign properties

–Justice Isa’s counsel says bench accepted all arguments, including malafide intention, prematurity and lack of evidence

ISLAMABAD: The Supreme Court (SC) on Friday dismissed the presidential reference filed against Justice Qazi Faez Isa for non-disclosure of family members’ properties in his wealth statement.

The reference filed against Justice Isa by the government in May last year alleged that he acquired three properties in London on lease in the name of his wife and children between 2011 and 2015, but did not disclose them in his wealth returns. Justice Isa contested the allegation, saying he is not a beneficial owner of the flats — neither directly nor indirectly.

Through his petition, Justice Isa pleaded before the apex court to consider and declare that the Asset Recovery Unit (ARU) constituted by the government to investigate his family’s properties was illegal and working without any legal effect and any of the actions taken by the unit with regard to the reference against the petitioner judge and his family was thereby illegal and of no legal effect.

The petition also claimed that no search was ever conducted and the names and property details of the petitioner’s family were gathered through surveillance.

A 10-member full court bench led by Justice Umar Ata Bandial announced the short verdict in the case at 4 pm.

“[The reference] is declared to be of no legal effect whatsoever and stands quashed,” read the judgement.

The top court, accepting Justice Isa’s petitions seeking the reference’s dismissal, also withdrew a show cause notice issued to Justice Isa. The show cause notice was issued by the Supreme Judicial Council (SJC) to Justice Isa in July last year for “writing letters to President Arif Alvi” after the presidential reference was filed against him.

The short order directed that the Inland Revenue Commissioner send a notice to the judge’s wife and children within seven days, asking them to give explanations about the nature and source of funding for three properties in their names in the United Kingdom.

The commissioner will complete the investigation within 60 days and issue an order within 15 days of investigation’s conclusion. The Federal Board of Revenue (FBR) has also been directed to submit a report to the SC registrar within seven days of the commissioner’s order.

The registrar will then present the report to the chairman of the SJC (the chief justice of Pakistan) who will decide when to present it in the council.

Three of the 10 judges wrote additional notes while Justice Yahya Afridi opposed the judgement.

Munir A Malik, counsel for Justice Isa, while speaking to the media outside the SC said that “all of their arguments were accepted by the court, including malafide intention, prematurity and lack of evidence”.

“The ARU cannot be accepted as a legal department as it was not constituted on legal grounds,” he added.

Justice Bandial had maintained that the apex court will examine whether the case should be completely quashed. He had said, “It is not an easy case. We will act strictly in accordance with the law.”

Appearing in the court on Friday, the government’s counsel, Dr Farogh Naseem, who resigned as the federal law minister to appear before the court in this case, submitted a reply from the FBR about the complaint of Justice Isa’s wife that she had disclosed properties in her tax returns for 2018-2019 but the FBR had still issued her a notice.

Justice Bandial said that the judge’s wife had brought all documents pertaining to the properties on record and the government would verify them.

Justice Isa’s counsel said that he could “not understand” what the government’s case was about. Referring to Naseem’s argument about a similar case of a judge in Gibraltar, Malik said that in that case the judge had associated himself with his wife’s properties while Justice Isa had not done the same.

He argued that the government had come to the SJC instead of going to the FBR, adding that Justice Isa had “never interfered” in the tax body’s workings. He said that Justice Isa had been forced to challenge the presidential reference to defend his and his wife’s honour and requested the court to declare the reference invalid.

Malik also demanded that the government’s counsel submit receipts for searching the record of properties in a UK court, saying that this exercise would determine whether the ARU had searched for them or someone else had done it. He claimed that the ARU had only acted as a facilitator in the reference.

Justice Isa’s counsel further claimed that the government brought in a reference against his client only because it wanted to remove the judge who had announced the verdict in the Faizabad sit-in case. “The court should not consider this petition as the case of an individual. Do we want a law that allows one institution to spy on another?” he questioned.

Justice Yahya Afridi then questioned Malik as to whether a judge’s individual rights were more important than the oath he took.

The counsel for the Supreme Court Bar Association Hamid Khan argued that Islam gave every individual the right to own property. Iftikhar Gilani, who was representing the Khyber Pakhtunkhwa Bar Council said 29 petitions had been filed by different bar councils and bar associations against the presidential reference.

“These are not Justice Isa’s relatives. The government’s reference has no basis and is against the freedom of judges,” he argued.

Justice Bandial said the question was whether the reference should be completely dismissed. “This is a very important question [for the bench]. Bar councils and bar associations have full faith in the judiciary,” he observed.

Justice Yahya questioned whether Justice Isa had violated his oath by appearing in the court to which Malik replied that that will be determined after it is decided whether the judge had appeared in the court for his own self or for the judiciary.

“Today, a reference has been filed against Justice Isa, tomorrow it can be filed against anybody,” he concluded.

A day earlier, Justice Isa’s wife Zarina Carrera Khoso had submitted the money trail of her three properties in the United Kingdom to a full bench of the apex court via video-link in the said case.

Justice Isa had told the apex court on Wednesday that his wife wanted to appear before the SC bench to explain the sources of her UK properties.

Subsequently, following the top court’s approval she had testified that all the money was transferred from Pakistan to UK through her two foreign accounts.

“Properties in Karachi were sold out and two bank accounts — one in British pounds and the other in US dollars — were opened in a private bank to transfer the money. From 2003-2013, a total of £700,000 was transferred through these two foreign accounts in the Standard Chartered Bank’s Karachi branch,” she had added.

Khoso had clarified that she was a Spanish citizen and that she had used her passport to purchase the properties in London. She had added that when her husband was a lawyer, she would get a five-year visa.

However, the Pakistani authorities had issued a one-year visa after 2018 only to create hurdles.

Justice Isa’s wife had explained that since she was born in Spain and her father’s and mother’s names, respectively, were Khoso and Carrera, her name on her birth certificate and passport is Zarina Carrera Khoso. After she got married to Justice Isa back in 1983, however, the Pakistani government registered her name on her CNIC as Zarina Isa, she had added.

In her statement, the judge’s wife had said her tax returns were filed after advice from Rehan Naqvi, her solicitor, and that she owned a house in Clifton, as well as a plot in Shah Latif Town. She also received agricultural land from her father, which is now in her name, she had added.

Khoso had said she that was advised that according to the law, tax returns were not filed on agricultural land. All of her taxes were filed after consultations with Naqvi, she had added, noting that the last tax return she had filed was over Rs7.6 million.

“We are quite satisfied that you have the material in support of the source (of money) for the properties,” observed Justice Bandial after the recording of her statement. “You have a strong answer to the slur caused by the allegations.”

In a rare appearance before the bench on Wednesday, Justice Isa had opposed the court’s suggestion the other day to the federal government to refer the matter of his family members’s foreign assets to the FBR, providing an opportunity to the spouse of the judge to explain about the sources for purchasing the London properties.

Justice Isa, while opposing the proposal of the apex court, had prayed for deciding the case on merit.

Justice Bandial had directed Justice Isa’s counsel— who was on video link from the Karachi registry — to ask the judge’s spouse to submit her explanation, with all documentary evidence, in writing.

Malik had said he took the instant case not because it pertained to an apex court judge but to protect the integrity and independence of the judiciary. He had submitted that it would be in the interest of justice that the instant case be decided on merit.

Justice Isa, however, had said the government had consented to the court’s proposal and he had to give his reply. He had submitted that the counsel for the federation was repeatedly asking for the money trail. The judge had said the council did not summon him for hearing him while the government submitted the replies very late.

He had prayed before the bench that his wife be given an opportunity to share details.

Justice Isa had contended that his spouse was not a lawyer and not in a position to submit a written response and, therefore, should be heard. She could reply to all the questions, he had added.

“Justice not only be done but seems to be done,” Justice Isa had submitted.

Justice Bandial had remarked earlier during the hearing that Justice Isa’s wife was a dignified lady but does not know the norms of the court and therefore she should be careful.

“We know she is not a petitioner, but she is connected with this dispute,” he had said.