The Supreme Court has declared that no one is above the law and no one can be deprived of their right to be treated according to law.
The detailed reasons of the four judges (Judge Maqbool Baqar, Judge Mazhar Alam Khan Miankhel, Judge Syed Mansoor Ali Shah and Judge Amin-ud-Din Khan) stated; “If Mrs. [Sarina] Isa, or the spouse of another judge, does not comply with tax law, she must be dealt with in accordance with the law, and if Judge Isa, or any other judge, violates a clause of the prescribed code of conduct for judges of the constitutional courts, he must also be prosecuted, but only in accordance with the law and not otherwise.
Judge Yahya Afridi, in his supplementary memorandum, said tax officials on the illegal instructions of Shahzad Akbar and Farogh Naseem breached the legal confidentiality of Sarina Faez Isa’s tax returns. “Allowing said offenders to continue in such important positions goes against the most basic principles of ‘good governance’ and exposes the behavior of the Prime Minister. [Imran Khan] complicity in the commission of said violations,” he added.
The Supreme Court announced on Saturday, after nine months, the detailed judgment of its brief order. On April 26, 2021, by a majority of six to four, the Court recalled its order of June 19, 2020, ordering the Federal Board of Revenue (FBR) to investigate the tax file of Sarina Isa, her son and her girl.
On June 19, the Supreme Court, by a majority of seven to three, overturned the presidential dismissal and terminated the show cause proceedings against Judge Qazi Faez Isa before the Supreme Judicial Council (SJC), but returned the his family’s tax issue at the FBR.
The judgment stated that this Court has consistently reiterated the well-established principle that courts cannot and should not create any right, liability or obligation that is not founded in law. But the contested instructions in the order of June 19, 2020 left no possibility for the tax commissioner to examine his legal authority before initiating proceedings in the applicant’s tax case.
He stated that, admittedly, the Karachi Tax Commissioner had jurisdiction under Section 209 of the Income Tax Ordinance (ITO) to proceed with respect to the income tax returns filed by the petitioner (Sarina Isa), but the contested instructions directed the Islamabad Tax Commissioner to pursue the matter.
Therefore, the FBR transferred the records of the applicant and her children to the Islamabad Tax Commissioner.
The contested instructions therefore affected the applicant’s acquired right, which accrued to her after the expiry of the period provided for in Articles 121 and 122 of the ITO to issue or modify the tax order and to have the right to cause a “material disadvantage” to the applicant.
The tribunal held that the person sought to be affected must at least: (i) be informed of the allegations against him, on the basis of which the decision is to be made, (i.e., notification of the case at hand) and (ii) be given a fair opportunity to make any relevant statements put forward to his own case, and to correct or refute any relevant statements made to his prejudice (i.e. opportunity to explain). In other words, to act with justice and achieve just ends by just means, a decision-making authority must respect and implement, in all circumstances, these elementary and essential requirements of the principle of loyalty and the right to be heard.
He noted that Ms. Isa had not been informed of the action the Court intended to take, nor had she had the opportunity to comment on it. Thus, she was not “advised of the case to be dealt with”, nor had “the opportunity to explain” why the Court should not give such instructions. The two essential requirements of the right of hearing were not satisfied before giving the impugned instructions. “Violation of this principle vitiates the proceedings and renders the action taken therein illegal, because violation of this principle is considered a violation of the law,” he added.
The judgment stated: “We feel compelled to observe that the petitioner cannot be penalized and deprived of her constitutional right to be treated according to law simply because she is the wife of a judge and an action against it would establish the Court’s impartiality.”
“We believe that public confidence in the impartiality and fairness of the judicial process can only be achieved when judges decide the cases brought before them against all persons, regardless of who they are, in accordance with the law, without fear or favour.” He said judges must decide in accordance with the law and protect fundamental rights rather than sacrificing these constitutional rights on the altar of expediency and building the Court’s image.
The Court noted that the Islamabad Commissioner of Taxes had no territorial jurisdiction under Section 209 of the ITO nor the authority and power to issue an order of taxation under Section 121 or vary a tax order under section 122 for a tax year after the expiration of five years from the end of that tax year, against the petitioner. The impugned directions directed him to do what he could not have done under the law, that is, whistleblowing. He stated that if an authority does not have jurisdiction in the matter under the law, jurisdiction cannot be conferred on that authority by order of the Court; but the impugned instructions had the effect of doing so. The impugned directions could not have been issued by this Court in the exercise of its power under Section 187(1) of the Constitution.
The judgment stated that the tax matter of the petitioner, Ms. Isa, could not have been referred to the Council because the role and jurisdiction of the Council is limited to matters relating to the conduct and capacity of the judges of the Superior Court . He does not have a mandate to pry into the affairs of someone who is not a judge of a superior court.
There is nothing in any statute or in the Code of Ethics for Judges that can be extended to hold a judge responsible for the conduct of his wife and children, or for that matter anyone else, without there being any evidence to link him with and hold him accountable for such conduct. Asking the Council, through the impugned instructions, to conduct “procedures” to decide whether or not it will investigate the issue of Judge Isa’s alleged misconduct in exercising his suo motu powers also amounts to interference in the functioning independent of the Council and therefore contrary to the spirit of the provisions of Articles 209 and 211 of the Constitution.
The Majority Judgment directed the SC office to submit the detailed reasons to Judge (Retired) Manzoor Ahmed Malik since he was a signatory to the majority justices’ short order (five for him to consider whether he agrees with the detailed patterns.
Judge Afridi said: “This Court (SC) lacked jurisdiction to issue the contested instructions to the Council to consider opening, or otherwise, an investigation against the requesting judge on the basis of the ‘information’ received from the officers from the tax office of the FBR. .”
The additional note said; “In issuing the contested instructions, we also lost sight of the procedure set out in the order as to how tax officials should: (i) prosecute a taxfiler who has undeclared income and assets or misdeclared and within what time period; (ii) determine the source of funds for the purchase of the undeclared assets, whether generated in Pakistan or in a foreign country; and (iii) importantly, in what year undeclared local assets or sources of funds and undeclared foreign assets and sources of funds should be added and valued.
Judge Afridi wrote; “I conclude that the impugned directions affecting the rights of Mrs. Sarina Faez Isa, her son and her daughter, were adopted by this Court in excess of jurisdiction and are therefore recalled.”
He felt that in no way should tax officials divert them from their legal obligation to stand firm in keeping a filer’s information confidential, in accordance with section 216 of the order which, as stated in the judgment under review, was clearly violated in the case of Sarina Faez Isa, the tax authorities on the illegal instructions issued by the President of the ARU, lawyer Shahzad Akbar with the agreement of the federal Minister of Law, Dr. Farogh Naseem, violated the legal confidentiality of Sarina Faez Isa’s tax returns.
“I feel compelled to observe that permitting the said offenders to continue to hold such prominent positions of authority by the worthy Prime Minister, and that too after this Court has unanimously declared their actions to be in breach of the Constitution and the law, in particular the provisions of Article 216 of the Ordinance entailing penal consequences52, denies the most elementary principles of “good governance”, and denounces the complicity of the worthy Prime Minister in the commission of the said violations .
the story was originally published in Business Recorder on January 30, 2022.