ISLAMABAD: The Supreme Court on Monday observed that the federation was moving away from Presidential reference, and was instead relying upon a show-cause issued to Justice Qazi Faez Isa by the Supreme Judicial Council (SJC).

“When the reference is crumbling from edges; therefore, your reliance is on show cause [issued by SJC]. Your first move is to clear perception it is not a ‘colour case’,” said Justice Umar Ata Bandial.

He was heading a 10-member larger bench that heard identical petitions challenging the presidential reference against Justice Qazi Faez for allegedly not disclosing his foreign properties in his wealth statement.

After Farogh Naseem’s submission of principle of proximity, Justice Bandial said the counsel was moving away from the case, “which is not really strengthening the reference”.

Justice Baqir said if the counsel was building a case on a show-cause notice, then he must keep in mind that when the foundation shakes the whole structure crumbles. “You cannot develop case on a show-cause notice [alone],” he added.

Justice Mansoor said, if the judges are accountable then the government is also accountable, adding that “then the matter would go further”.

“If it goes further then there will be consequences,” he warned.

Farogh Naseem said it seems the prime minister, the president, and the law minister, are on trial, and not the judge, who has yet to explain the source of income for his family members’ properties. 

“We are ready to face and will establish every point,” he said.

He said the consequences would be for both the sides.

Farogh Naseem, who is representing the federation, and chairman Asset Recovery Unit (ARU) Shehzad Akbar again quoted the judgments from Indian jurisdiction and the Privy Council, in order to establish the principle of proximity.

He said judges should be held at higher standard than ordinary citizens.

To strengthen his point of view, he also cited the Judge (Inquiry) Act, 1968.

However, Justice Bandial said that they are not impressed with this law, terming it a draconian law. Farogh Naseem then argued that Martial Regulations have been recognized by the governments.

He, while looking at Raza Rabbani, ex-chairman Senate, who was present in the court, said when many laws were repealed then why under the 18th Amendment this law was not deleted.

He said not only did an elected democratic government adopt it, it also retained it, so this could be used in future.

“The law is, therefore, not draconian,” he added.

Justice Mansoor Ali Shah asked if the proceeding are initiated against the wife of a judge for not declaring properties in her tax returns, and if she is unable to explain the sources then there will be a case of concealment against her under the law, adding that “then how the petitioner [Justice Faez] comes in picture, and why he has to disclose the sources?”

He also asked the tax authorities find out that it was the wife’s liability then how is the judge related to this matter.

Farogh Naseem said these are not tax proceedings, but disciplinary in nature.

It is the matter of public perception and public controversy about the judge, he added.

Replying to question raised by Justice Mansoor Ali Shah, Farogh Naseem contended that fake news is always fake, but the case here is that the judge’s wife has expensive properties in London, and he has failed to disclose the sources.

Justice Maqbool Baqir asked whether it has been established who provided funds for the purchase of these properties. These could be inherited or the wife has her own sources to purchase them.

He said in many cases, independent wives ask their husbands never to inquire from them about financial, business issues.

Justice Yahya Afridi told the counsel that he had not provided the summary for initiation of reference, and how the information is collected, and the former attorney general’s [Anwar Mansoor] rejoinder went directly to the Supreme Judicial Council or through president of Pakistan.

Justice Bandial told Farogh Naseem that he was going into deeper points arising out of the constitutional office of the judge. “However, you are moving away from the reference that is specific,” he added.

“We are aware of the jurisdiction of the SJC,” he said and asked the counsel to tell if the reference is merely information.

Justice Bandial said: “According to you at the end only question seem to be important and that is the issue of source of properties, as large duty upon the judge because of sacred trust, and he [judge] must be above from every opprobrium, so public or private life cannot be impinged. We can’t allow you to assail the judge on generality, surmises or expectation and what the public thinks. The reference is based on dishonesty and corruption.” He also remarked:

“The lawyers’ bars are sentinel of the courts. They are supporting the petitioner, and according to them there is no complaint of dishonesty against the petitioner.”

Justice Bandial said the judges are accountable in every way and there standard is supposed to be very high, adding that “We live in glass houses. We need to identify the issue. You [the counsel] are disassociating from Section 116 of the Income Tax Ordinance, 2001, which is the basis of the reference. Now your main concern is that the judge in the society be paragon of virtue. The disputed fact is that the judge says ask his wife about the properties. We are giving this point considerable thought.”

Addressing the counsel, the judge also observed: “You are saying the malice in this case is different from the case of ex-CJP Iftikhar Chaudhry.

What is the solution? Once you are abandoning Section 116 of the ITO, which does not impose obligation on husband to declaring wife’s assets in tax/wealth returns. You expect the Supreme Court to give judgment on an out of the blue concept. Now you saying that Section 116 of the ITO is not the main issue. The declaration, the form and the rules do not support your point of view.”

The case was adjourned until today (Tuesday).—TERENCE J SIGAMONY