The Supreme Court declared that no one is above the law, and no one can be denied his right to be dealt with in accordance with the law.

The four judges’ (Justice Maqbool Baqar, Justice Mazhar Alam Khan Miankhel, Justice Syed Mansoor Ali Shah and Justice Amin-ud-Din Khan) detailed reasons said; “If Mrs [Sarina] Isa, or a spouse of any other judge, does not comply with the tax law, she must be dealt with in accordance with the law, and if Justice Isa, or any other judge, breaches any clause of the Code of Conduct prescribed for judges of the constitutional courts, he also must be proceeded against but only in accordance with law and not otherwise.”

Justice Yahya Afridi in his additional note stated that the tax officials on unlawful directions by Shahzad Akbar and Farogh Naseem breached the statutory confidentiality of Sarina Faez Isa’s tax returns. “Allowing the said delinquents to continue in such important positions belies most elementary principles of ‘good governance,' and expose the Prime Minister’s [Imran Khan] complicity in the commission of said violations,” he added.

The Supreme Court on Saturday, after nine months, announced the detailed judgment of its short order. The Court on April 26, 2021 by a majority of six to four recalled its order dated 19th June 2020, directing the Federal Board of Revenue (FBR) to investigate the tax record of Sarina Isa, and her son and daughter.

The Supreme Court on June 19 with a majority of seven to three had quashed the Presidential Reference and abated the show cause proceedings against Justice Qazi Faez Isa before the Supreme Judicial Council (SJC), but referred the tax matter of his family to the FBR.

The judgment said 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. But the impugned directions on June 19, 2020 order did not leave any option with the Tax Commissioner to consider his legal authority before initiating proceedings in the tax matter of the petitioner.

It said that admittedly, the Tax Commissioner, Karachi, had the jurisdiction, under Section 209 of the Income Tax Ordinance (ITO), to proceed in respect of the income tax returns filed by the petitioner (Sarina Isa), but the impugned directions mandated the Tax Commissioner, Islamabad to proceed in the matter.

Therefore, the FBR transferred the cases of the petitioner and of her children to the Tax Commissioner, Islamabad.

The impugned directions have, thus, affected the vested right of the petitioner, which have accrued to her after a lapse of the period prescribed under Sections 121 and 122 of the ITO for issuing, or making amendment in, the tax assessment order and have the effect of causing “material disadvantage” to the petitioner.

The court held that the person sought to be affected must at least: (i) be made aware of the allegations made against him, upon which basis the decision is to follow, (i.e., notice of the case to be met) and (ii) be given a fair opportunity to make any relevant statement putting forward his own case, and to correct or controvert any relevant statement brought forward to his prejudice (i.e., opportunity to explain). In other words, in order to act justly and to reach at just ends by just means, a deciding authority is to comply with and implement, in all circumstances, these elementary and essential requirements of the principle of fairness and right of hearing.

It noted that Mrs Isa was not informed of the action the Court was contemplating to take, nor was she given a chance to state her stance on that. Thus, she was not given “notice of the case to be met”, nor was she provided with an “opportunity to explain” why the Court should not make such directions. Both the very essential requirements of the right of hearing were not complied with before making the impugned directions. “The violation of this principle vitiates the proceedings and makes the action taken therein to be illegal, as the violation of this principle is considered as a violation of law,” it added.

The judgment said: “We feel constrained to observe that the petitioner cannot be penalized and deprived of her constitutional right to be dealt with in accordance with law merely because she is the spouse of a Judge and action against her would establish the impartiality of the Court.”

“We believe that public confidence in the impartiality and fairness of the court process can be achieved only when Judges decide the matters presented before them against all persons, whosoever they may be, in accordance with the law without fear or favour.” It said the judges are to decide in accordance with law and protect the fundamental rights rather than sacrifice these constitutional rights at the altar of expediency and image building of the Court.

The Court noted that the Tax Commissioner, Islamabad had no territorial jurisdiction under Section 209 of the ITO and no authority and power to issue a tax assessment order under Section 121 or to amend a tax assessment order under Section 122 for a tax year after lapse of a period of five years from the end of that tax year, against the petitioner. The impugned directions mandated him to do that which he could not have done under the law, i.e., the ITO. It said if an Authority has no jurisdiction in the matter under the law, the jurisdiction cannot be conferred on that Authority by an order of the Court; but the impugned directions had the effect of doing so. The impugned directions could not have been made by this Court in the exercise of its power under Article 187(1) of the Constitution.

The judgment said that the tax matter of the petitioner, Mrs Isa, could not have been referred to the Council as the role and jurisdiction of the Council is limited to the matters relating to the conduct and capability of the superior Court Judges. It is not mandated to delve into the affairs of someone who is not a judge of a superior Court.

Nothing is there in any law or in the judges’ Code of Conduct, which could possibly be stretched to hold a judge liable for the conduct of his spouse and children, or for that matter of anybody else, without there being any evidence to connect him with and hold him responsible for such conduct. Asking the Council, by the impugned directions, to conduct “proceedings” to decide whether or not it will inquire into the matter of alleged misconduct by Justice Isa in the exercise of its suo motu powers is also tantamount to interference into the independent functioning of the Council and, thus, against the spirit of the provisions of Articles 209 and 211 of the Constitution.

The majority judgment directed the SC office to place the detailed reasons before Justice (retd) Manzoor Ahmed Malik since he was a signatory to the short order by majority judges (five for his consideration whether he agrees with the detailed reasons.

Justice Afridi stated: “This Court (SC) did not have the jurisdiction to issue the impugned directions to the Council to consider initiating, or otherwise, an inquiry against the petitioner Judge based on the “information” received from the tax officials of the FBR.”

The additional note said; “In making the impugned directions, we also lost sight of the procedure provided in the Ordinance, as to how tax officials are: (i) to proceed against a tax filer that has undeclared income and assets or mis-declared the same and within what time period; (ii) to determine the source of funds for purchasing the undeclared assets, whether generated in Pakistan or in some foreign country; and (iii) above all, to which tax year the undeclared local assets or source of funds and the undeclared foreign assets and source of funds are to be added to and assessed.”

Justice Afridi wrote; “I find that the impugned directions affecting the rights of Mrs Sarina Faez Isa, her son and daughter, have been passed by this Court in excess of jurisdiction, and are, therefore, recalled.”

He held that the tax officials should in no way detract them from their statutory duty to remain steadfast in ensuring the confidentiality of the information of a tax filer as mandated under section 216 of the Ordinance which, as noted in the judgment under review, was blatantly breached in the case of Sarina Faez Isa, the tax officials on the unlawful directions issued by the Chairman ARU, Barrister Shahzad Akbar with the concurrence of the Federal Law Minister, Dr Farogh Naseem, breached the statutory confidentiality of Sarina Faez Isa’s tax returns.

“I feel constrained to observe that allowing the said delinquents to continue in such important positions of authority by the worthy prime minister, and that too after this Court has unanimously declared their actions to be in violation of the Constitution and law, particularly the provisions of section 216 of the Ordinance entailing penal consequences,52 belies the most elementary principles of “good governance”, and expose the worthy prime minister’s complicity in the commission of the said violations.”

The story was originally published in Business Recorder on January 30, 2022.