- The short order left no room for mistake
The short order of the Supreme Court announced today, quashing presidential reference against Justice Qazi Faez Isa is all too brief and cryptic. That is why it is being interpreted variously, with each interpretation is at odds with the other. Some are saying the Court really showed its guts and held aloft the banner of independence of the judiciary, while others feel the Cort tried to run with the hare and hunt with the hounds, and has virtually thrown the ball back to the Supreme Judicial Council (SJC) in a new garb. Still, others are maintaining that a sword of Damocles has been kept hanging over Mr Justice Isa and his family. It is time to comprehend its true import.
In paragraph 1 of its order, the Court allowed Mr Justice Isa’s petition. However, certain riders were added, which has caused confusion among legal circles and the government apologists. To evaluate what was granted by the Court, the prayers by Mr Justice Isa. At the heart of his petition lie four reliefs in the shape of declarations: first, that the reference was actuated by malice in fact and in law, undermining the independence of the judiciary; second, contrary to the perception the government sought to create, he has neither contravened any provisions of the Income Tax Ordinance, 2001, nor evaded any tax liability and as such the allegation made against him regarding his improper conduct or misconduct was unfounded and groundless. As for the non-disclosure of the properties of his spouse and children, the judge was not bound to make any such declaration under Section 116 of the ITO, particularly when no property was purchased with his funds, nor were they dependent upon him. Third, the Asset Recovery Unit (ARU), which was instrumental in collecting the evidence against the judge was itself non-existent in the eyes of law, for it was working with the blessing of the Prime Minister, but no law of the land gave it or its activities a legal cover. Also, the information collected surreptitiously by it, and FIA and other government agencies flew in the face of guarantees in Articles 4 and 14 of the Constitution regarding the inviolability of the person, property, dignity, and privacy.
Now, when the aforementioned prayers are examined in the light of the short order, it becomes obvious that none were denied or disallowed. The conclusion is irresistible that the reference was quashed on the basis that the action directed against Mr Justice Isa was found unwarranted, stemming from mala fides. Put another way, there was no material or basis or tangible grounds available to the government to file a reference. The reference has been regarded as a direct assault upon the independence of the judiciary, that is secured by the Constitution. Obviously, the proceedings launched against one judge were to browbeat other independent judges into submission. In a word, it is the collective reaction of one institution against other institutions, who attempted in vain to make inroads into the judiciary. At the same time, the government was conveyed that the judiciary wouldn’t be party to any witch-hunt in the name of accountability. And if conducted by an institution without sanction of law, the judiciary wouldn’t give its blessing to such a blatant attempt by the government of the day. The ARU’s future appears to be hanging in the balance until the release of the detailed order. In the interim, the ARU is to proceed cautiously and its Chairman, Mirza Shahzad Akbar, is to function on his own risk and at his own peril. Otherwise, he might find himself landed into endless controversies and dragged into courts mercilessly and unceasingly.
The second attack on the judiciary by the executive, the first being on Chief Justice Iftikhar Chaudhary, has been repulsed by the judiciary with the unrelenting struggle waged by a fearlessly independent judge, Mr Justice Isa, duly supported by the lawyers’ community through its representative bodies. United we stand, divided we fall. Independence of the judiciary won. So did rule of law and supremacy of the constitution
Circles sympathetic to the government are trying to make out that the government was given leeway and allowed to retreat to fight another day. This is clearly a misconstruction being put on the short order. Time and again, the judges were at pains to observe during the hearing of the petition that they were not above the law, and they had never claimed they are untouchables or holy cows. They stressed they wished to be treated like other citizens, enjoying the same protection of the law.
If the short order is examined closely, it emerges that the proceedings against Mr Justice Isa have been quashed and that no inquiry is to be made against his person at any forum. As for the Court’s direction to the FBR, suffice to say, such an inquiry is to be confined to Mr Justice Qazi’s spouse and children. In other words, his stance that he is not concerned with the properties of his wife and children has been accepted and he is not to account for those properties. Had Mrs. Qazi not volunteered to offer herself for being inquired by the tax authorities, the Court would have stopped short of giving any such direction. At the same time, the judges appear to address the concerns of those insinuating they were out to save the skin of one of their brethren. After all, when Mrs. Qazi is in possession of ample material to back up her claims, no one is to be apprehensive. Even otherwise, when nothing would be found against Mr Justice Isa, he would be secured from future onslaughts of the executive.
Such a course has not been suggested to offend the sensibilities of Mr Justice Isa, as is being presumed by mischief mongers. Had the Court itself passed any judgment on the tax matters of Mrs. Qazi, a mealy-mouthed, Advocate of the Federal government, Farogh Naseem, would have cast aspersions, arguing that the tax authorities have been bypassed or their powers circumscribed.
As regards the time frame set by the Court for concluding the inquiry to be conducted by the FBR, it was essential given that, left to its own devices, the CBR would have taken decades to conclude it, thereby looming large as a threat over Mr Justice Isa’s family, deriving vicarious pleasure.
It is being wrongly assumed that the SJC has been directed to proceed against Mr Justice Qazi by exercising its suo motu powers. In point of fact, the Court has simply restated the SJC’s position in the constitutional scheme. A perusal of Article 209 bears this out. Nothing is to be read into the short order to construe it as if the proceedings now quashed against Justice Qazi Faez would stand revived and resuscitated after 90 days. The fate of the reference, material contained in it, and the basis thereof has been sealed for good.
If some of the judges spoke out their minds in their detailed judgment, it would definitely create ripples thereafter. It is highly likely that in its wake, the pressure would be mounted on the government to step down, labelling it anti-judiciary and fascist, which threw caution to the winds, trying to clip the wings of the independent judiciary and trampling upon fundamental rights.
The willingness of Mrs Qazi to appear before the FBR and the Court’s direction to this effect aside, it is doubtful whether she, as a non-resident in a particular year, was liable to file any income tax return at all and if not, how could she be burdened with any income tax with regard to properties lying outside Pakistan. Again, the crucial question is whether the amendments brought in income tax law in 2018 or 2019 could be applied to her retrospectively. As of today, the law is that tax liability cannot be imposed upon a person retroactively.
No matter how things pan out for Mr Justice Isa’s family, the government has fallen flat for now and is likely to find itself stuck in a blind alley in the future. The freedom-loving citizens are to be assured that the spectre of accountability looming large over Mr Justice Isa and his family is illusory. The government has been left to chase shadows. In Punjabi, “Hakmoot tai oodey hawarion nooh truck di batti pichhay la dita gia hai“. (The government and its disciples have been made to chase a trucklight.)
The second attack on the judiciary by the executive, the first being on Chief Justice Iftikhar Chaudhary, has been repulsed by the judiciary with the unrelenting struggle waged by a fearlessly independent judge, Mr Justice Isa, duly supported by the lawyers’ community through its representative bodies. United we stand, divided we fall. Independence of the judiciary won. So did rule of law and supremacy of the constitution.
