The detailed judgment in Justice Qazi Faez Isa’s review petitions challenging the presidential reference against him in the Supreme Judicial Council (SJC) has finally arrived. The effort of turning a minority at the time of the original judgment into a majority at the time of review is said to have been spearheaded by Justice Maqbool Baqar, the author of the majority review judgment and the short order it follows from — which was issued in April last year.
Apprehending what it might contain, the government had filed an unprecedented ‘curative review’ seeking to repair what it had feared Justice Baqar might damage.
The review judgment explains why the short order upturned the full court directions issued on June 19 2020 as supported with reasoning issued on October 23 2020 whereby the commissioner inland revenue had been tasked to extraordinarily investigate the spouse and children of Justice Isa, and given a timeline and methodology to do so.
It begins with explaining that all are accountable before the law including judges and their families, and are similarly afforded the same due process as promised in the law to everyone. It isn’t a lack of accountability which is evident here, but a correction of what was a lack of due process and constitutional protection which is afforded to everyone else.
It then goes on to explain the right of the judges who were in the minority at the time of the original judgment to express themselves and participate fully at the time of review, and to opine as the majority should the votes shift. This was a matter of contention, as after the original judgment was issued and the review was filed, it was firstly fixed before only those judges who had made up the original majority and had supported the directions given to the income tax commissioner.
After much argument, the original full bench of ten had been reconstituted, with an opinion included in the decision that the minority members would refrain from actively participating in the review proceedings and simply bear witness as had been quoted as precedent from the Zulfikar Ali Bhutto case.
The review puts this contention to rest in detail, stating that where the minority becomes the majority in the same case which is under review, it is the opinion of the entire bench it is representing and not simply that of the numerical majority. As such, the new majority is fully equipped to issue the new opinion of the entire court, notwithstanding internal dissent.
Sarina Isa addressed the court to put forward her contentions. At the time, she was afforded this opportunity not to show cause against specific grounds, but to put forward her point of view.
The judgment then focuses on the grounds for review, and explains the situation succinctly: Sarina Isa addressed the court to put forward her contentions. At the time, she was afforded this opportunity not to show cause against specific grounds, but to put forward her point of view. She went above and beyond and provided reams upon reams of evidence of her wealth and means of purchase of assets. She was never made aware that she was answering a specific series of allegations, and she was never made aware that a failure to satisfy the court, or by way of partial satisfaction, she would face a novel investigation by the income tax arm of the government.
She did not consent to being investigated beyond a point where any other answering citizen is immune: beyond five years of income tax records. She did not consent to being deprived of her right to due process which is available to every citizen, and could not have been answering for such when she addressed the court. A hearing must be meaningful, the Supreme Court said, and you must be armed with the knowledge of the consequences should you fail to make par. What Serena Isa was afforded could not have been considered such a hearing.
More importantly, the Supreme Court could not have taken it upon itself to create a situation which the law does not allow. There is a plethora of judgments which protect and insulate tax payers from being asked questions which are behind the timeline limitation of investigation to within five years from the end of the financial year as provided by the law. It is a statutory limitation and is absolute. It is the bedrock of legal certainty, without which no business could move forward for fear of a ten or twenty year old liability which may once again come alive. Nothing can be inferred in tax law because of its extractive nature, the court has held before. Nothing that is ambiguous may be interpreted to the detriment of the individual in such law, the court has also held before. How then can a novel situation be created where a commissioner is given special charge, the departmental procedure is completely side stepped and an arbitrary timeline is created to suit the whim of only the court itself? How can someone who has as yet not been properly asked to show cause within the timeline she could have been asked, suddenly be put in a special dock, created with the excuse that she came to the court herself and has hence put forward a defence? A defence to a charge which she did not know she was defending at the time. The court handles her situation in paragraph 28, by saying:
“We have very carefully read the transcript of her statement as well as of the observations made by the learned senior member of the bench. We do not find in it that his lordship or any other honourable member of the bench asked her whether she had anything to say if the court would direct the tax authorities to inquire into her sources of fund whereby she had purchased the foreign properties, and to conduct proceedings for determining her tax liability regarding those properties under the ITO. She 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 right of hearing were not complied with before making the impugned directions.
Hearing the Petitioner on 18 June 2020 by the Court on video-link before making the impugned directions on 19 June 2020, therefore, cannot be said to be a fair and “meaningful hearing” in the context of making the impugned directions. While the independent, adult and married children of the petitioner (her son and daughter) were not heard at all, before making the impugned directions that related to and affected them also. The impugned directions must have come as a surprise to the petitioner and her children”.
Whilst undoing the directions of Income tax appearances and timelines, the court first analyses how they must have come about. It states that they must have been thought up to ensure accountability of a constitutional court judge and to uphold the public trust. But in so doing, it was thought up without notice, without informing the parties to the formula, without noting the legal and constitutional aspects of fair trial, due process and statutory limitations. It states that this novel formula was no way a relief consequential or incidental to what was being adjudicated, and must have come as a surprise to the parties as they were beyond the scope of the case before the court, which was simply a challenge to the presidential reference to the Supreme Judicial Council on the ground of mala fide intent.
The court then goes to state in paragraphs 51 and 52:
“Likewise, directing for speedier proceedings in the tax matter, of Mrs. Isa to be conducted by a Tax Commissioner who has no jurisdiction to proceed in her tax matters under the law was unwarranted. The impugned directions singled out Mrs. Isa and Justice Isa for special treatment by directing initiation of proceedings into their matters by the tax authorities and the Council in accordance with a procedure which was not provided by the law and the Constitution; their fundamental right to equality before the law and equal protection of law guaranteed by Article 25 of the Constitution was thus infringed by the impugned directions”.
“This Court, in its concern to enable the early resolution of the matter, made the impugned directions without noticing the relevant provisions of the ITO and without considering the consequences of ensuring accountability of a constitutional court Judge through a procedure that is not envisioned by article 209 of the Constitution. “To seek to be wiser than the law is the very thing by good laws forbidden”.
However, to error is judges presiding Courts including the apex one are no exception. Courts are, therefore, as much human institutions as any other and share all human susceptibilities to error. Owning his mistake on realisation does not diminish one’s prestige or ability; it perhaps enhances both. A Judge, therefore, should not hesitate to review his decision if it is established not to be right. Because it is better to return to what is right than to clinging onto what is wrong”.
There is no commentary on the politics which led to the hounding of Justice Isa in the majority opinion. There is no sanction for those who conducted the hounding, as the same would have been outside of the purview of review jurisdiction and opened a new can of worms with which the establishment would feed controversy.
It keeps simply to errors which it finds floating on the record, explains those errors, and corrects them. It starts and ends by saying and then reiterating that no one is above the law, but that the law must at the same time afford everyone the same protections. Protections which were being denied to Justice Isa and his family, about which misinformation has once again begun to be spread on behalf of a government whose law ministry should actually be searching for the same reasons Boris Johnson is desperate to find: how do you justify hanging onto authority after this? For such deficiencies, there is no curative review.