SCJ reference is malafide defective, Ex-C

Islamabad (NA Report ) A prominent former chief justice of Pakistan Iftikhar Mohammad Chaudhry believes that the reference against Justice Qazi Faez Isa of the Supreme Court was moved by the government without strictly following the constitutional provisions and the apex court judgments.

“The reference has been filed without strictly following constitutional provisions at the behest of Special Assistant to Prime Minister Shahzad Akbar. It should not have been landed at the office of the president or the prime minister and ultimately through the attorney general in the SJC,”.

“The deficiency in the case, apparent on the record, is that except the prime minister, the cabinet was not in the picture,” he said, recalling that in the parliamentary system of governance the prime minister alone cannot run the affairs of the government.

Article 90 of the Constitution has to be read with the rules of business as well as the 2016 Mustafa Impex Supreme Court judgment, in which it was declared that the federal government was a collective entity described as the cabinet constituting the prime minister and the federal ministers, he said.

It has however not been reported whether the reference was placed before the cabinet or not for deliberations.

However, a senior counsel on condition of anonymity said matters regarding Article 209 of the Constitution that deals with the SJC does not fall under Article 90 because while deciding such issues highest level of secrecy has to be maintained.

Justice Chaudhry explained that the question was not what was the nature of the business which was to be transacted rather the question was whether Article 90 had been followed since without the approval of the cabinet the prime minister alone was not competent to send the summary to the president for approval.

In the 2016 Mustafa Impex judgment, the Supreme Court had elaborated that neither a secretary nor a minister or the prime minister was the federal government, he said.

Therefore, the president may have declined to approve the move of filing the reference, he said, adding in view of the Mustafa Impex case, the members of the SJC can examine at the very outset the competency and validity of the reference.

What is the importance of placing a case before the cabinet as per Article 90 and the principles discuss in the Mustafa Impex case is that instead of one or two a good number of wizards having parliamentary and political experience at their command should provide a positive input.

In the Mustafa Impex case, the Supreme Court had ultimately struck down notifications which were not issued with the approval of the cabinet.

At the same time, possibility can also not be ruled out that if good sense prevails, the federal government which has acted on the complaint of the Asset Recovery Unit (ARU) may itself attend to this aspect of the matter, he said.

Referring to Section 116 of the Income Tax Ordinance, Justice Chaudhry said there was no obligation upon the taxpayer to file the statement of wealth on behalf of his spouse until and unless he was held responsible for making his own investment as a Benamidar in favour of his spouse as reported by a section of press.

But this too would not constitute as misconduct under the scheme of ITO, he said, adding the commissioner IT would have to issue a notice first of all or a taxpayer himself files his revised statement.

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