After a Supreme Court (SC) bench ruling on Justice Qazi Faez Isa and his family members in regard to a Federal Board of Revenue (FBR) inquiry, two of the judges, Justices Maqbool Baqar and Syed Mansoor Ali Shah, issued their dissenting notes.
Justice Shah, in his note, said that the reference against Justice Isa contained malafide of both law and fact.
“The actions of entertainment of the complaint, the investigation and surveillance for the collection of evidence, the putting up of Summary before the prime minister by the law minister and finally the approval of the Summary by the prime minister and placing the ‘information’ before the president under Article 209 (5) of the Constitution for removal of the Petitioner Judge from office are found to be tainted with both malafide of law and malafide of fact,” Justice Shah wrote in his 65-page note.
The justice also held all government parties involved in the case responsible, placing special emphasis of the role of the prime minister in these matters.
“The major burden of these malicious actions fall on [the premier’s] shoulders who also happens to be the leader of a political party that had filed the review petition with an astonishingly unique prayer seeking ouster of the petitioner judge for expressing an independent view.”
Justice Shah also said that “vengeance and resentment against the petitioner judge” were evident.
“If we start reading the events after the Faizabad Dharna judgment, one is compelled to conclude that the petitioner judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power. This fact is floating on the record of the review petitions,” he maintained.
He also said that these actions were in violation of fundamental human rights granted by the constitution. “There is no law in our country that authorises any law enforcement or intelligence agency to pry into the privacy of any person through surveillance and interception, except the IFTA [Investigation for Fair Trial Act 2013],” Justice Shah wrote.
Dubbing the right to privacy as “absolute”, he said that without any law to regulate such an inquiry into a person’s private sphere, any evidence collected must be absolutely inadmissible, adding that the ARU had violated the judge’s privacy in its attempt to collect evidence.
“Therefore,” he said, “such evidence/material was liable to be excluded from consideration without any exception, and the law minister and prime minister could not have relied and acted upon it, for making the “Summary” and advising the President respectively.”
In conclusion, Justice Shah said, “had the chairman ARU been acting for recovery of the alleged illegally acquired foreign assets of the judges as per the so-called mandate of the ARU, the fact that a judge had resigned could have made no difference for taking legal proceedings for the recovery of his alleged illegally acquired foreign properties.”
Meanwhile, Justice Maqbool Baqar said in his note that he “found that the allegations against the petitioner were wholly unfounded, baseless, frivolous, misconceived and mala fide, and that the petitioner was right in claiming the purported Reference to be a product of animosity, malice of law as well as of facts and that it streams from the ill-will harboured by some functionaries of the executive against the petitioner”.
“It was found that despite commissioning the entire government machinery, to somehow ferret some excuse to proceed to dislodge the petitioner, and misusing the government departments, and resources, in unconstitutional and unlawful manner, in that pursuit, including covertly surveilling the petitioner, and his family, the official respondents have neither been able to show any illegality or misconduct on the part of the petitioner nor that the wife and children of the petitioner are his dependents,” Justice Baqar added.
He said that there was no justification for directions given to the FBR, which went beyond the scope allowed by the petition. Furthermore, Justice Baqar said that the five-year limitation for tax assessment of the petitioner’s wife and children had expired years ago.
He further added that “the assessments that have attained finality with the afflux of time cannot be ordered to be re-opened and the FBR’s reopening of the same shall be in violation of the legal prohibition and disability. Such would also violate the vested rights of the wife & children”.
“The role of the three organs of the state, the Executive, the Legislature and the Judiciary, are well defined by the Constitution. Judiciary being the guardian of the Constitution has to ensure this principle is maintained by all the three,” he maintained, adding that the onus of maintaining the prescribed balance is heaviest on the judiciary.
The SC judge added, “This Court has persistently reiterated the well-established principle that the courts cannot and should not create any right, liability or obligation that is not founded in law.
