ISLAMABAD: The Supreme Court on Thursday asked the federation's counsel to inform it who was the “bright light" that said the non-disclosure of spouse's foreign properties by Justice Qazi Faez Isa in his tax-returns was misconduct under Article 209 of the Constitution?

Justice Maqbool Baqir told Farogh Naseem to keep in mind there would be consequences if he was unable to rebut the malice as alleged by Justice Isa.

Justice Muneeb Aktar said Abdul Hameed Dogar, a complainant was shown at the doorstep of the ARU, which proceeded and came up with three properties in the names of the petitioner's wife and children.

The unit pulled together three agencies and alleged three offences in the Presidential Reference under the Foreign Exchange Act, the Income Tax Ordinance, 2001, and the Anti-Money Laundering Act, 2010.

He said there was no offence of money laundering as the properties were purchased in 2004 and 2013, while the offences were added to the schedules of the Anti-Money Laundering Act in 2016 and in the Foreign Exchange Act in 2015.

The ARU instead of asking the FBR to check from the lady about the undisclosed properties came to the conclusion that the offence was committed under the Foreign Exchange Act because the source of funds to buy properties were not disclosed.

Justice Muneeb asked the former law minister to read out the latest judgement on privacy in an international case, which was passed by the United Kingdom's Supreme Court.

Farogh Naseem had argued last Wednesday that in 1988 a law was passed in England and after that it was allowed that anyone could find out properties' details from the land registry by paying £2 to £3.

A 10-member larger bench, headed by Justice Umar Ata Bandial has been hearing identical petitions challenging presidential reference against Justice Qazi Faez for allegedly not disclosing his foreign properties in his wealth statement.

During the course of proceeding, Farogh Naseem, representing the federation and chairman Assets Recovery Unit (ARU), said that there is a system according to which a government functions.

He said it was not necessary that the president applied independent mind on legal issues as the incumbent president by profession was a dentist, and the prime minister, a politician and a former cricketer; therefore, they had to rely on the advice of the government officials.

The ex-law minister cited an Indian judgment to show the working of the government.

However, the bench expressing dissatisfaction said it was not relevant to the instant case.

Justice Maqbool Baqir said under Article 209 of Constitution, the president had been assigned a specific role that he had to form an opinion on the information placed before him for sending the reference to the Supreme Judicial Council (SJC).

He is required to comply with a legal obligation under the Article 209, he added.

Justice Mansoor said the president had to play the role of an arbiter when he received information against any judge from the government; therefore, he had to form an independent opinion.

“After examining the material, he can ask the government [that] it is not enough," he added.

Justice Bandial said Article 209 was not only for removal of the judges of the superior courts, but to protect the independence of judiciary as well.

Justice Baqir said Section 116 of the Income Tax Ordinance, 2001, required an assessee to furnish complete information about his assets and wealth and if he failed to do so then he had to reply to the FBR in response to the notice.

Justice Muneeb Akhtar asked the counsel that under the Rules of Business, according to him [the counsel], the secretary prepared the groundwork, and then the relevant minister forwarded the summary to the prime minister.

Justice Mansoor asked whether the president could preempt something which the authorities under law had to decide.

Explaining the genesis of Assets Recovery Unit (ARU), Farogh Naseem said the ARU came into existence in view of the apex court's suo motu that it was the fundamental right of the people of Pakistan to bring back stolen money stashed abroad.

He said the ARU was established under the Rules of Business on 20-08-2018 after the approval of the cabinet, adding the unit had its office in the Cabinet Division.

Justice Umar Ata Bandial said the Supreme Court did not give any direction for the setting up of the ARU, adding that a task force constituted by the Court comprised state functionaries, but the Committee formed by the government included all private persons.

Justice Sajjad Ali Shah stated that the mandate of the ARU was to deliberate legislative and executive measures for tracing and repatriating Pakistanis assets lying abroad.

The bench has raised serious questions over the working of ARU and the federal government has yet to satisfy the court on the matter.

Justice Mansoor asked Farogh Naseem about the number of complaints registered with the ARU.

The judge told him to provide a list of complaints registered and actions taken on them.

Justice Yahya Afridi remarked that Shahzad Akbar was appointed as chairman ARU on 20-08-2018, and the same day he prepared the summary, which means he already had the material.

The judge questioned whether he was not required to do the required research.

Justice Maqbool said that the gentleman did show competency and expertise in other cases.

Justice Mansoor observed that it was the prerogative of the prime minister to appoint anyone as his special assistant, but appointing anyone as head of the unit required a complete process because the other members of the unit were government officials, and were inducted through a process.

He said how the ARU could touch any citizen it is unless constituted through a legislation. He said the police or the FIA or the NAB officials work under the statutes.

Justice Afridi said the State had various departments.

However, the prime minister did not utilise the state departments and to verify the complaint gave it to a private special assistant.

Justice Mansoor said they were not saying that the judges were above the law.

If the FBR wants to examine my tax returns, it has the power and it can do it, which has to be dealt with in accordance with the law.

He asked whether the ARU can override the statutory confidentiality.

The case was adjourned until Monday (June 8th).

Copyright Business Recorder, 2020