Daily Times

Justice Qazi Faez Isa, the Supreme Court judge facing a presidential reference for not disclosing his family’s assets, turned the tables on the ruling party before the apex court by identifying key PTI leaders who owned properties in the UK – including Special Assistant to the PM on Accountability Shahzad Akbar.

As a 10-judge full court, headed by Justice Umar Ata Bandial, continued hearing the petitions against the reference on Tuesday, Justice Isa in a written statement informed the bench that Akbar owned five properties in the UK, Prime Minister Imran Khan (six), Special Assistant to the PM on Overseas Pakistanis Zulfiqar Bukhari (seven) and Special Assistant to Prime Minister on Youth Affairs Usman Dar has three to his name.

Former federal information minister Firdous Ashiq Awan and PTI stalwart Jahangir Tareen each owned a property there as well. In addition, the judge submitted before the court that former military ruler Gen (r) Pervez Musharraf owned two properties in the UK.

Justice Isa submitted the statement in response to SAPM Akbar telling the court that he did not receive any salary or benefit as the head of the Asset Recovery Unit (ARU).

“Taking a cue from what is stated to have transpired in the case of the petitioner’s family, the search engine 192.com was used to search a few known public figures,” the statement read.

The judge clarified that was “not saying or suggesting, let alone allege” that the people he had identified had illegally acquired any property in the UK in violation of the income tax, the foreign exchange and/or money laundering laws.

“Before an allegation of non-compliance with income tax law is made, the Federal Board of Revenue must check its records [of these individuals] and consider how much taxable income was declared and income-tax paid and whether they had non-taxable income, such as from agricultural land, which the Constitution exempts from payment of income tax.”

Justice Isa further stated that before making an allegation with regard to the illegal transfer of money abroad, the State Bank “must check to determine whether the said individuals had foreign exchange accounts and whether thorough their accounts money was remitted abroad, to exclude the possibility of it sent to the UK through Hawala, Hundi or by any other illegal means”.

“And, before making an allegation of money laundering the competent authority must first check if the said individuals had committed a crime and the properties were purchased from the proceeds of crime,” he added.

“Assuming that the said individuals had failed in respect of all or any one of the above, they would still be entitled to be asked and given the opportunity to provide an explanation. Without first seeking an explanation and without a shred of evidence an allegation must not be made that the spouses of the said individuals were the real owners of the properties. What surely should never be done is to call upon the said individuals to do the impossible – disprove that the allegation is not true.”

On the PM’s aide claiming that he received no salary or benefit, the judge wondered as to “how he [Akbar] survives”.

“Is he [Akbar] his working wife and/or working children’s dependent? And did they also pay for the services of a renowned lawyer. Or does Mirza Shahzad Akbar make do with the money generated by the, ‘successful recovery including a reward of up to 20% of the ‘recovered amount,” Justice Isa pointed out.

He further noted that a document dated August 20, 2018 that appointed Akbar as the SAPM did not disclose the terms of his appointment.

“The ARU is completely unrestrained and unaccountable, ironically at its head is the Prime Minister’s Special Assistant on Accountability. This has no parallel in any civilised country of the world. The fact that this was done without legislation, whilst bypassing the elected representatives of the people, subverts democracy and the Constitution of the Islamic Republic of Pakistan,” he added.

The judge maintained that the documents setting up the ARU took away a number of fundamental rights which are guaranteed in the Constitution. “Not a single one of the fundamental rights can be curtailed or abridged. The documents which purport to set up ARU are, as the Constitution says, void, that is literally blank spaces (Article 8 of the Constitution),” he added.

“The citizens of Pakistan are governed by laws and have rights, fundamental rights, which no one, not even Parliament, can take away. The federal cabinet does not have legislative power; it cannot change a single punctuation mark in a single law. Members of the federal cabinet take oath to ‘preserve, protect and defend’ the Constitution, not to subvert, violate and destroy it. Parliamentary democracy is a defining feature of the Constitution. To bypass Parliament and make ‘laws’ by executive diktat is a gross transgression of the Constitution.”

Meanwhile, the Supreme Court proposed on Tuesday that the federal government initiate tax proceedings against Justice Qazi Faez Isa’s family members regarding the non-disclosure of three foreign properties.

The 10-judge full-court, which was hearing a slew of petitions challenging the reference that was sent to the Supreme Judicial Council (SJC) in May 2019, remarked that if there were findings against the judge the government could then approach the SJC again.

Federal counsel Dr Farogh Naseem sought a day’s time from the court to respond to the bench’s proposal.

Justice Umar Ata Bandial, who is leading the 10-member bench, noted that there were several legal defects in the reference. The government’s prime concern is to know the source of funds to acquire said properties, which is only possible through the proper mechanism i.e tax proceedings, he observed.

“You have not issued tax notice under Sections 116 or 114 [of the Income Tax law],” remarked Justice Bandial. He further said that Justice Isa never refused to disclose the source of funds but wanted proper mechanism. If the court held that there was malice behind the initial reference then the government has no basis to proceed in this manner, he added.

Justice Bandial also warned that if the government did not follow the procedure, the court would be finding malice. Maybe not all of us but bench members will give finding on malice, said Justice Bandial.

A member of the full court, Justice Sajjad Ali Shah, also noted that there was no harm in initiating tax proceedings in this matter, and then the SJC may be approached against the SC judge by the government.

“We don’t want a bad name for the apex court but that fair opportunity be given to the SC judge,” said Justice Shah. Let due process be followed, and then whatever the outcome, proceed in accordance with law, remarked Justice Maqbool Baqar, another member of the bench. Dr Naseem sought time to discuss the bench’s proposal with his clien, the federal government, and continued with his arguments in the case.

As the hearing drew to a close, the federal counsel asked how much time would be given to the tax authorities to complete proceedings in the matter. Justice Bandial said that they would have time till the end of the court’s summer break. Maximum two months, he said. However, Justice Baqar also noted that there was a history of how tax machinery is being exploited.

The federal counsel sought one day’s time to respond to the bench’s proposal.

The challenged reference, sent to the SJC in 2019, sought Justice Isa’s removal alleging that he committed misconduct when he failed to mention his family members’ properties in the United Kingdom in his wealth statement. The SJC – the only constitutional forum that can hold a superior court judge accountable – had later started proceedings on the basis of the government’s reference and issued show-cause notices to Justice Isa, who is in line to become the chief justice of Pakistan.

Justice Isa and a number of other petitioners later challenged the reference and the SJC proceedings in the apex court. In his petition Justice Isa had accused the PTI-led federal government of spying on him and his family to discover their foreign properties. At an earlier hearing of the case, on June 4, Justice Baqar asked the government to bear in mind the consequences in case it was unable to prove its case against Justice Isa.

The same judge on June 12 reminded the government’s counsel that a democratically elected PPP government had been sent packing in 1996 on charges of judges’ surveillance. At the hearing on Monday, the federal counsel has stated before the apex court that the president, prime minister and law minister were ready to face consequences if the presidential reference filed against Justice Isa is quashed. As the case proceeds, speculations are rife within political and legal circles over the implications of the case and its possible judgement.