In paragraph No. 1 of its order, the SC allowed the petition of Justice Qazi Faez Isa. At the same time, certain riders were added to it, causing confusion among legal circles and the government apologists. In order to evaluate what was granted by the SC, it is necessary to recall the prayers made by Justice Qazi Faez Isa in his petition. At the heart of his petition lies four reliefs in the shape of declarations: first, reference was actuated by malice in fact and in law, undermining the independence of the judiciary. Second, contrary to the perception sought to be created by the government, he has neither contravened any provisions of the Income Tax Ordinance (ITO), 2001, nor evaded any tax liability and as such the allegation made against him regarding his improper conduct or misconduct was unfounded and groundless. As for the non-disclosure of the properties of his spouse and children, the judge was not bound to make any such declaration under Section 116 of the ITO, particularly when no property was purchased with his funds, nor were they dependent upon him. Third, the Asset Recovery Unit (ARU), which was instrumental in collecting the evidence against the judge was itself non-existent in the eyes of law, for it was working with the blessing of the Prime Minister, but no law of the land gave it or its activities a legal cover. To top it all, the information collected surreptitiously by it, and FIA and other government agencies flew in the face of iron-cast guarantees ingrained in Articles 4 and 14 of the constitution regarding the inviolability of the person, property, dignity, and privacy.
Now, when the aforementioned prayers made by Justice Qazi Faez Isa are examined in the light of the short order, it becomes obvious that none of the prayers made by him were denied or disallowed. The conclusion is irresistible that the reference was quashed on the basis that the action directed against Justice Qazi Faez Isa was found unwarranted, stemming from mala fides. Put it another way, there was no material or basis or the tangible grounds available to the government of Pakistan to file reference against Justice Qazi Faez Isa. The reference against him has been regarded as a direct assault upon the independence of the judiciary secured by the founders of the constitution. Obviously, the proceedings launched against one judge were to browbeat other independent judges into submission.
In short, it is the collective reaction of one institution against other institutions, that attempted in vain to control the judiciary. At the same time, the government was sounded out that the judiciary wouldn't be a party to any witch-hunts carried out in the name of accountability. And if it is conducted by an institution that has no sanction of law behind it, the judiciary wouldn't give its blessing to such a blatant attempt by the government of the day. The future of the Assets Recovery Unit (ARU) appears to be hanging in the balance until the release of the detailed order by the apex Court. In the interim, ARU is to proceed cautiously and its Chairman, Mirza Shahzad Akbar is to function at his own peril. Otherwise, he might find himself landed into endless controversies and dragged into courts mercilessly and unceasingly.
The circles sympathetic to the government are trying to make out as if the government was given leeway and allowed to retreat and to fight for another day. This is clearly a misinterpretation of the short order. Time and again, the judges were at pains to observe during the hearing of the petition of Justice Qazi Faez Isa that they were not above the law, and they have never ever claimed that they are untouchables and holy cows. It was stressed by them that they should be treated like other citizens, enjoying the same protection of the law.
If the short order is examined closely, it would emerge that the proceedings against Justice Qazi Faez have been quashed and that no inquiry is to be made against his person at any forum. As for the direction of the Supreme Court to FBR, it suffices to say that such an inquiry is to be confined to the spouse and children of Justice Qazi. In other words, the stance of Qazi that he is not concerned with the properties of his wife and children has been accepted and he is not to account for those properties. Had Mrs. Qazi not volunteered to offer herself for being inquired by the tax authorities, the SC would have stopped short of giving any such direction to the FBR. At the same time, the judges of the SC of Pakistan appear to address the concerns of those, who were insinuating that they were out to save the skin of their brethren. After all, when Mrs. Qazi is in possession of ample material to back up her claims, no one is to be apprehensive. Even otherwise, when nothing would be found against Justice Qazi, he would be secured from future onslaughts of the executive.
Such a course has not been suggested to offend the sensibilities of Justice Qazi, as is being presumed by mischief mongers. Had the SC itself passed any judgment on the tax matters of Mrs. Qazi, the over-eager advocate of the Federal government, Farogh Naseem, would have cast aspersions, arguing that the tax authorities have been bypassed or their powers circumscribed.
As regards the timeframe set by the SC for concluding FBR inquiry, it was essential given that left to its own devices, FBR would have taken decades to conclude it, thereby continuing to threaten the family of Justice Qazi, and perhaps deriving vicarious pleasure.
It is being wrongly assumed that the Supreme Judicial Council (SJC) has been directed to proceed against Justice Qazi by exercising its suo moto powers. In point of fact, the SC has simply restated the position occupied by the SJC in the scheme of the constitution. A bare perusal of Article 209 of the Constitution testifies to that. The short order of the SC has quashed proceedings against Justice Qazi Faez and there is no direction that it would stand revived after 90 days. The fate of the reference, material contained therein, and the basis thereof has been sealed for good.
If some of the judges of the SC spoke out their minds in their detailed judgment, it would definitely create ripples thereafter. It is highly likely that in its wake, the pressure would be mounted on the government to step down, labelling it anti-judiciary and a fascist one, which threw caution to the winds, clipping the wings of the judiciary and consequently trampling upon citizen rights.
The willingness of Mrs. Qazi to appear before the FBR and the direction of the SC to this effect aside, it is doubtful whether she being a non-resident in a particular year was liable to file any income tax return at all and if not, how could she be burdened with taxes with regard to properties lying outside Pakistan? Again, the crucial question is whether the amendments brought in income tax law in 2018 or 2019 could be applied to her retrospectively. As of today, the law is that tax liability cannot be imposed upon a person retroactively.
No matter how things pan out for the family of Justice Qazi, the government has fallen flat for now and is likely to find itself fall in the blind alley in the future. The freedom-loving citizens should rejoice that the witch-hunt of Justice Qazi and his family will hopefully remain ephemeral. In other words, the government may have been left to chase shadows. In Punjabi, "Hakmoot tai oodey hawarion nooh truck di batti pichay la dita gia hai".
In conclusion, the second attack on the judiciary by the executive –– the first on Chief Justice Iftikhar Chaudhary –– has been repulsed by the judiciary due to the unrelenting struggle of fearless independent judge, Justice Qazi Faez Isa. And as before the good judge was supported by overwhelming majority of the lawyers through their representative bodies.
The lesson as before is clear: United we stand, divided we fall.