Two Supreme Court judges, who were part of the full bench that ruled to refer the properties’ matter of Justice Qazi Faez Isa’s family members to the Federal Board of Revenue (FBR) for inquiry, issued their dissenting notes on Wednesday. The notes were issued by Justices Maqbool Baqar and Syed Mansoor Ali Shah. A third judge, Justice Yahya Afridi, had sent his dissenting note earlier. “We have however not been able to persuade ourselves to agree with the part of the short order, as contained in paragraphs 3 to 11 thereof, whereby directions have been issued to the FBR, to issue notices, and initiate proceedings, against the wife and children of the petitioner, and for submitting the report of the said proceedings to the SJC, for the later to proceed in the matter as contemplated in the aforesaid paragraphs, and with various other directions contained therein, for the following reasons,” said Justice Baqar in his 68-page dissenting note. He said that there was no justification for directions, and guidelines to the FBR. “The said directions were/are clearly beyond the scope of the petition allowed/disposed of through the short order,” the judge observed. “I found that the allegations against the petitioner were wholly unfounded, baseless, frivolous, misconceived and mala fide, and that the petitioner was right in claiming the purported Reference to be a product of animosity, malice of law as well as of facts and that it streams from the ill-will harboured by some functionaries of the executive against the petitioner,” he further maintained in his statement. Justice Baqar added that, “It was found that despite commissioning the entire government machinery, to somehow ferret some excuse to proceed to dislodge the petitioner, and misusing the government departments, and resources, in unconstitutional and unlawful manner, in that pursuit, including covertly surveilling the petitioner, and his family, the official respondents have neither been able to show any illegality or misconduct on the part of the petitioner, nor that the wife and children of the petitioner are his dependents.” He added that, “As discussed in detail earlier, neither any provision of the ITO 2001, nor of any other law, requires the petitioner to make the disclosure as was contended. There is no concept of any vicarious liability under the income tax law as was suggested by the respondents.” Justice Baqar said that the properties that were acquired by the wife and children of the petitioner in the tax years 2004 and 2013, and the five-year limitation period for opening a tax assessment on them had expired several years ago. Considering this, the apex court judge observed that the family cannot be lawfully required to furnish the source of funds for acquiring the said properties, or any income information for the said years. He further added that, “the assessments that have attained finality with the afflux of time cannot be ordered to be re-opened and the FBR’s reopening of the same shall be in violation of the legal prohibition and disability. Such would also violate the vested rights of the wife & children”. The top court judge said that the SC order requires the wife and children of the petitioner to do what the law does not oblige them to do, and instead prohibits the FBR from seeking information, the wife and children have been obligated to furnish. It may be observed here that obligations can only be rooted in law. “The role of the three organs of the state, the Executive, the Legislature and the Judiciary, are well defined by the Constitution. Judiciary being the guardian of the Constitution has to ensure this principle is maintained by all the three,” he maintained, adding that the onus of maintaining the prescribed balance is heaviest on the judiciary. The apex court judge added that, “This Court has persistently reiterated the well-established principle that the courts cannot and should not create any right, liability or obligation that is not founded in law”. In his dissenting note, Justice Syed Mansoor Ali Shah observed that the presidential reference against Justice Isa is tainted with both “mala fide of law” and “mala fide of fact”. “The actions of entertainment of the complaint, the investigation and surveillance for the collection of evidence, the putting up of Summary before the prime minister by the law minister and finally the approval of the Summary by the prime minister and placing the ‘information’ before the president under Article 209 (5) of the Constitution for removal of the Petitioner Judge from office are found to be tainted with both malafide of law and malafide of fact,” said Justice Shah in his 65-page note. The SC judge held all the government actors responsible adding, “as the buck stops with the prime minister in a constitutional parliamentary democracy, the major burden of these malicious actions fall on his shoulders who also happens to be the leader of a political party that had filed the review petition with an astonishingly unique prayer seeking ouster of the petitioner judge for expressing an independent view.” “If we start reading the events after the Faizabad Dharna judgment, one is compelled to conclude that the petitioner judge was deliberately targeted for his observations and directions made in that judgment, which perhaps were considered hostile and troublesome by those in power. This fact is floating on the record of the review petitions,” he maintained. Justice Shah further added that, “the vengeance and resentment against the petitioner judge is more than visible from the strange and unprecedented assertions made for the judge’s removal on the ground of misconduct in the review petitions; soon it took shape of a vague complaint filed before an incompetent authority (ARU) housed in the office of the premier”. Justice Shah said that the present case, however, posed different questions such as, what would be the effect of violation of a constitutionally guaranteed fundamental right, which is absolute as it is not regulated by any law? Would the prohibition on admissibility of evidence collected by infringing such right be absolute or be subject to exceptions? “While the fundamental right to personal liberty and privacy guaranteed by Articles 9 and 14 of the Constitution are subject to law,” his statement maintained, “there is no law in our country that authorises any law enforcement or intelligence agency to pry into the privacy of any person through surveillance and interception, except the IFTA (Investigation for Fair Trial Act 2013)”. “Thus, in the remaining sphere the right to privacy is absolute, until law is enacted to regulate it. The violation of this sphere of the absolute privacy right makes the inadmissibility of evidence collected in violation thereof also absolute. Absolute right entails absolute prohibition on its violation,” the top court justice said, adding that the ARU collected evidence by violating the sphere of absolute privacy right of the petitioner judge and his family through surveillance, and without backing of any law for its authority to do so. “Therefore,” he said, “such evidence/material was liable to be excluded from consideration without any exception, and the law minister and prime minister could not have relied and acted upon it, for making the “Summary” and advising the President respectively.” Justice Shah concluded his statement saying that, “had the chairman ARU been acting for recovery of the alleged illegally acquired foreign assets of the judges as per the so-called mandate of the ARU, the fact that a judge had resigned could have made no difference for taking legal proceedings for the recovery of his alleged illegally acquired foreign properties.”