The federal government has been asked to back up the references it has filed against Justice Qazi Faez Isa on solid legal grounds. On Friday, Dr. Farogh Naseem, government’s legal representative, argued that a husband—in the instant case who happens to be a Supreme Court’s judge—is expected to declare the assets of his wife, dependent or otherwise, to maintain high standards of accountability and transparency. However, the court raised questions whether a judge whose wife was an independent businesswoman would legally be bound to declare her assets or not. Legal experts maintain that no such law exists in Pakistan.
Wealth statement required of a person mandates disclosure of assets held by a spouse only if these were obtained through funds provided by that person & are held as benami assets. Assets purchased by a spouse in her own right are to be disclosed only in her wealth statement.
— salman akram raja (@salmanAraja) May 30, 2019
The court also asked Dr. Naseem to submit a copy of his arguments so that judges can carefully read out the legal basis on which the reference was filed.
During the last hearing, Farogh Naseem repeatedly said that the SC judge was bound to declare his spouse’s assets, implying that independence or co-dependence doesn’t matter in the case. The government’s counsel stated that this case was not primarily related to section 116 of the tax law. Dr Farogh Naseem said that he respected the judges and their integrity, but, he maintained, the Supreme Judicial Council (SJC) was the proper forum to ask a judge about the property of his spouse
Naseem told the SC bench that the rule of proximity was a fundamental one and that it was misconduct if a judge failed to give details of the assets of his wife, his dependent or not.
The counsel gave this argument after the bench asked which law was violated by Justice Isa that the government had to file a misconduct reference against him.
However, Justice Sajjad Ali Shah told him that he referred to the Islamic law out of context. He also asked whether the same Islamic principles will be applicable to non-Muslim judges.
Justice Syed Mansoor Ali Shah wondered if the government’s counsel is asking if women have any legal rights in Pakistan. Justice Maqbool Baqar said that Naseem was trying to create a brand new case. “You are quoting the holy Quran out of the context,” judges told Dr. Naseem.
It is important to recall that Justice Isa’s wife is a businesswoman who regularly files her income tax return which, from a legal standpoint, clarifies that she is an independent lady. Anything related to her income tax return should be asked from her, legal experts maintain. However, the government demands, as Dr. Naseem has said, an answer from the judge for his wife’s business or alleged violation of income tax laws.
Moreover, while pointing towards counsel for the federal government Dr Farogh Nasim, Justice Baqar highlighted the need to demonstrate before the 10-judge full court infractions on part of the petitioner judge (Justice Qazi Faez Isa) so that he could be amenable to the scrutiny by the Supreme Judicial Council (SJC).
The government could not hold two simultaneous and parallel proceedings — one under the tax regime and another through SJC — especially when there was a perception that the reference smacked or tainted with mala fides and initiated without jurisdiction, Justice Baqar remarked.
“Justice Isa is the ‘ostensible owner’ of three properties in the UK”
Back in October 2019, the government informed the Supreme Court (SC) that Justice Qazi Faez Isa was the ‘ostensible owner’ of three properties in the United Kingdom as his family members purchased the assets at a time when they had no independent source of income. The government in its response lamented over the behavior of Justice Isa who instead of addressing the questions raised in the reference started vilifying the complainant. The response was submitted by then-Attorney General of Pakistan Anwar Mansoor Khan.
PTI govt informs Supreme Court that Justice Qazi Faez Isa is the ‘ostensible owner’ of three foreign properties as his family members purchased the assets at a time when they had no independent source of income.https://t.co/v4hn8g8S5t
— The Express Tribune (@etribune) October 10, 2019
“The petitioner’s spouse and children own expensive properties in the UK which were purchased in the year 2004 and 2013 at a time when they had no independent source of income of their own. The inescapable conclusion which follows is that the properties are Benami and that the petitioner is the ostensible owner,” it said.
Judges are accountable, SC clarifies
The court also dispelled the expression as if the judges were above the law. The apex court clarified that every judge is accountable but in accordance with the law. “There is a need to clarify since unfortunately an impression is being created as if judges are not accountable,” Justice Maqbool Baqar observed, saying no one was stopping anybody to conduct the accountability of judges.
“We are a little more accountable than ordinary persons and on behalf of my brother judges I declare that we are very much amenable to accountability and not above the law,” he said, but emphasized that the process of accountability should be done in accordance with law.
Is Justice Isa facing consequences for writing a ‘strong judgment’?
Justice Isa is said to be facing ‘consequences’ after he delivered a strong-worded verdict in the Faizabad sit-in case. The judgment authored by Justice Isa drew some broad and important conclusions. For example, the court has directed the federal and provincial governments to monitor and prosecute those advocating hate, extremism, and terrorism. It also ordered the government ─ through the defense ministry and respective chiefs of the armed forces ─ to initiate action against armed forces’ personnel found to have violated their oath.
The judgment further states that any person who issues an edict or fatwa that “harms another or puts another in harm’s way must be criminally prosecuted under the Pakistan Penal Code, the Anti-Terrorism Act, 1997, and/or the Prevention of Electronic Crimes Act, 2016.”
Finally, the judgment states that Inter-Services Intelligence, the Intelligence Bureau, Military Intelligence and the Inter-Services Public Relations “must not exceed their respective mandates”. It also reinforced the idea of freedom of speech which, the court said, is also subject to the law.
Many in Pakistan believe that he is now being targeted for his judgment which also made PTI a part of it and slammed it for using the religious card to target the then-government of PML-N. The top court has to determine whether such speculation holds some ground or not. If yes, the apex court is expected to provide more constitutional security to its judges so that they may pronounce more firm and strong judgments.