However, 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.
In summary, the Supreme Court found eleven grounds on which it found the reference against Justice Qazi Faez Isa to be legally ‘defective’.
Why the reference was deemed 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.
On the basis of these findings, the Supreme 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.
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.
“An independent judiciary is certainly a necessity for any civilised society governed by laws to prosper and thrive. But in utmost good faith neither Judges nor the institution can retain the public trust when serious stigmas are cast on their integrity,” it ruled.
“The institution [of the judiciary] cannot be perceived to be ignoring an unpleasant allegation of undeclared foreign assets of a family member of a Judge,” it added.
“Whilst the ownership of the London Properties is not disputed, the source of funds for their purchase and the mode by which these funds were transferred abroad require explanation. Otherwise, an unexplained investment by the spouse of a Judge of the Superior Courts, who is a holder of public office, compromises the integrity of the learned Judge and ultimately the probity and credibility of the institution which he serves,” it added.
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 matter of undeclared and unexplained foreign wealth of public office holders bears a stigma in Pakistan that these assets have been acquired unlawfully (a stigma which applies with even greater force since the PANAMA leaks on 03.04.2016).
“Therefore, every public office holder including Judges of the Superior Courts, officers of the armed forces, elected representatives and public servants are accountable under the law.
“Indeed, neither the institution of the judiciary nor the other institutions of Pakistan can tolerate a contrary perception. Consequently, all public office holders remain accountable under their applicable legislation on misconduct.”
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.