SC issues detailed verdict in Qazi Faez Isa case; terms reference unconstitutional

The Supreme Court of Pakistan (SCP) Friday issued the detailed verdict in Justice Qazi Faez Isa case and declared Presidential reference sent against apex court judge as unconstitutional.

The Supreme Court (SC) on June 19, dismissed the presidential reference against Justice Qazi Faez Isa after declaring it ‘invalid’.

The detailed verdict released by apex court nullified the presidential reference against Justice Isa and termed the reference as violation of the law and the Constitution.

Though the apex court found glaring lapses and procedural irregularities in the filing of the reference, it ruled that there was no ill intent behind the filing of the reference on the part of the president and prime minister.

“Justice is an article of faith in our religion, whether that may be against our kith and kin or against the rich or poor,” Justice Umar Ata Bandia wrote in opening remarks of the detailed judgment issued Friday.

“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).

“In fact, an impartial and independent judiciary is universally recognised as a core value of any civilised democracy. This is evidenced by the international conventions that protect this value as a fundamental right of the people (ref: United Nations Basic Principles on the Independence of Judiciary and The (Montreal) Universal Declaration on the Independence of Justice).”

The judgment stated that the presidential reference filed against Justice Isa was in violation of the law and the Constitution. “The worthy President grossly failed to exercise his discretion as mandated under the Constitution and, thus, the entire process built thereon leading to the filing of the Reference was in violation of the law and the Constitution,” the verdict read.

In summary, the Supreme Court found eleven grounds on which it found the reference against Justice Qazi Faez Isa to be legally ‘defective’.

“These illegal acts […] depict their [the government's] utter disregard of the law. Filing a reference under Article 209 of the Constitution that is signed by the President and which presents a charge sheet against a Judge of the Superior Courts 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 Rules of Business, the Income Tax Ordinance and Anti Money Laundering Act but have also ignored the law […] which specifically set out certain safeguards to protect Superior Court Judges from arbitrary actions of the Executive,” the judgement states.

“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 [the government’s] errors amount to a wanton disregard of the law. As a result, although the preparation and framing of the Reference against the petitioner 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,” it added.

"Consequently, the ongoing proceedings against the petitioner in the Supreme Judicial Council also stand abated," the judgement states.

The Supreme Court ruled that no ill intention or malice could be attributed to the individuals responsible for a reference because the allegation that they had raised — that Justice Isa's wife and children owned properties in London — was in fact true.

"This is because it is now well established in other areas of the law that an allegation of malice in fact gets defeated if it is proved that a complaint levelled against a person is true. Accordingly, we hold that the allegations of malice in fact levelled by the petitioner against the respondents fail," it ruled on the matter. There is no evidence of falsity of the material collected or of misrepresented facts being alleged by the respondents. Their expedition has no doubt resulted in legal errors [...]; however, this is still no ground for imputing malice in fact against the respondents," it added.

The court also explained that it had referred Justice Qazi Faez Isa's family to the Federal Board of Revenue on two grounds: namely, to "establish that judges of the Superior Court are answerable for allegations casting aspersions not only on their personal integrity but also on the integrity of the institution" and, secondly, because Justice Isa himself had requested that the source of funds for the London properties and the allegation of money laundering must be put to his wife, who is an independent taxpayer.

While taking care to dispel the notion that any public office holder is immune to accountability proceedings, the court observed that unexplained foreign wealth is sure to invite scrutiny under relevant laws.

The Supreme Court also dismissed the argument put forward by Justice Isa that the government had committed a violation of his right to privacy by probing his family's London properties "because it is now obvious that in searching these records the respondents [the government] have not violated any law."

"Indeed, there is no law to violate since property records are open to the public (and have been since 03.12.1990). Consequently, no confidentiality attaches to such records. Clearly then, the acts of the officers of Assets Recovery Unit and the Federal Government in accessing the property records of the petitioner and his family cannot be classified as either invasion of privacy or covert surveillance," it ruled.

The court ruled that since the reference itself was so full of legal defects, the subsequent investigation by the ARU lost its legality and tax information pertaining to Justice Qazi Faez Isa was disclosed in contravention to the law.

"It is critical [...] that the ‘investigation’ is duly sanctioned and is being carried out in accordance with law [...]. If this is not so, then clause (p) can have no application and the [tax] information cannot be disclosed.

"There was no proper investigation for the purposes of Article 209 when the ARU sought the tax information of the petitioner from the FBR. Consequently, the exception in Section 216(3)(p) of the Ordinance is not applicable to the facts of the case," it noted.