Despite Supreme Court’s majority direction, minority judges have thoroughly considered the Federal Board of Revenue (FBR) assessment report on the foreign properties of Justice Qazi Faez Isa’s family members, asserting that hurdles could not be imposed on the ability of dissenting judges to express their views.
Chief Justice of Pakistan Umar Ata Bandial, while authoring the minority opinion, has revealed that the majority of the bench in an additional note on May, 5 2021 — attached to the order of April 20, 2021 — had returned the documents procured from the Supreme Judicial Council (SJC) and objected to the questions posed to Justice Isa during the hearing.
The chief justice said the additional note ordered the return of the material forwarded by the SJC and attempted to restrain various forums and authorities from scrutinising them via the short order.
“This is necessary to protect the judicial independence of all members sitting on the bench. No hurdles on the ability of dissenting judges to express their views on the basis of available record can be imposed, especially if the dissent is specifically with the directions issued by the majority,” the CJP observed, giving rationale for the minority verdict that sought Justice Isa coming clean before SJC.
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The apex court’s minority judgment, authored by CJ Bandial, read that there was material that called for an explanation before the SJC which must be provided by Justice Isa to protect him and the court from aspersions cast on their integrity regarding the purchase of foreign properties by his family members.
“We must not falter in the face of such a powerful command. Judges, like all other persons in the service of Pakistan and holding public office, are answerable for their errors and omissions. In the instant case, there is a material that calls for an explanation before the SJC which must be provided to protect the learned petitioner and the Court from aspersions cast on their integrity,” read an 86-page minority judgment authored by Chief Justice Bandial.
Giving detailed reasons for it, the CJP noted that firstly, the review majority’s direction “cannot stand in our way as judges sitting in the same bench, in dissent though we may be, from accessing and evaluating the material which is available on the record, and passing judgment thereon or with reference thereto”.
“In any event, whilst five members of the majority have declared the banking information to be illegal and of no legal effect, none of them (including the 6th member) have restrained any forum or authority from considering or acting upon the said information. Therefore, the said material can be examined by us and any relevant forum or authority, including the SJC.”
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Secondly, CJP Bandial noted that courts could review a judgment if new and important evidence was produced — which although existed at the time when the order was passed — could not be accessed.
“In the present case, new material has surfaced during the proceedings of CIR, Islamabad.”
The CJP noted that both documents that they had referred to (the procuration and delegation form and the cheques issued by the former partner of the petitioner) existed on the day the short order dated June 19, 2020 was passed.
“It was only when the direction to the FBR was issued vide the short order dated June 19, 2020 to proceed with the verification of the funding of the London properties owned by Mrs. Isa that the CIR, Islamabad made a request for information to her banks under Section 176 of the Ordinance.”
Justice Bandial further noted that the documents produced by Mrs. Isa’s bank revealed the connection of the petitioner [Justice Isa] with her foreign currency account.
“Resultantly, the perusal of and reliance on these documents in review jurisdiction is competent, relevant and critical for verifying the propriety of this Court’s direction to the FBR. Their contents are also crucial for arriving at an informed decision in the review,” the CJP observed.