Supreme Court issues detailed verdict in Qazi Faez Isa reference case

The Supreme Court on Friday ruled that  the presidential reference filed against Justice Qazi Faez Isa  was in complete disregard of the law.

The judgement says that the President “grossly failed to exercise his discretion as mandated under the Constitution” & the “entire process … leading to the filing of the Reference was in violation of the law & Constitution”

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

The top court found eleven grounds on which it found the reference against Justice Qazi Faez Isa to be legally ‘defective’, .

i. The President and the PM never gave the needed authorisation to investigate the affairs of Justice Isa. Instead the authorisation of the Law Minister was obtained;

ii. No notice was issued to Mrs. Isa as required under Section 116(1) of the Income Tax Ordinance prior to the filing of the reference;

iii. It was assumed that Justice Isa was to be under the obligation to declare the assets of his independent wife and adult children on the basis of an unsettled and disputed interpretation of Section 116(1)(b) of the Ordinance;

iv. There was no evidence or a previous offence recorded against Justice Isa to support the allegation of money laundering brought against him;

v. Likewise, there was no evidence that Justice Isa had violated the Foreign Exchange Regulation Act and even the relevant provisions from the said law were not specified in the Reference;

vi. The President received wrong advice from the attorney general and the law mnister, described as “the chief architects of the reference”, on the strengths and weaknesses of the Reference;

vii. The President failed to get considered, fair and objective advice from a third party on the questions of law noted in the reference;

viii. The President failed to notice the various legal and procedural defects in the Reference;

ix. The President did not form a considered opinion under Article 209(5) of the Constitution;

x. As there was no valid authorisation for an investigation against Justice Isa, the government’s Assets Recovery Unit illegally accessed the tax records of the petitioner and Mrs. Isa; and

xi. Firdous Ashiq Awan, who was then the information minister, had made contemptuous remarks about Justice Isa in public during a press conference.

The court delivered a blistering rebuke of the way the allegations against Justice Qazi Faez Isa had been handled.

“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.

Note by Justice Yahya Afridi. 

The note says directions by the Law Minister & the Chairman ARU (currently the PM’s Adviser on Accountability & Interior) to obtain confidential tax records of Justice Isa & his wife from FBR were “illegal” & exposed them to a criminal prosecution.

The Sections (198, 199 & 216) of the Income Tax Ordinance quoted by Justice Afridi in calling the directions of Law Minister & Chairman ARU (Current PM Adviser on Accountability) to the FBR “illegal” prescribe a fine of not less than Rs 500,000 & prison term of not more than one year.

In his separate note, SC Judge Yahya Afridi said that the action of Law Minister & Chairman ARU (Current Adviser to PM on Accountability) were “illegal” and are liable for “criminal prosecution” or sections of the law with a minimum fine of Rs 500,000 & prison term not over 1 year.