ISLAMABAD: Justice Yahya Afridi of the Supreme Courtroom in his separate observe declared difficult of the presidential reference by Justice Qazi Faez Isa not maintainable, saying the elemental rights of a sitting decide would stay eclipsed as far as their enforcement was not in consonance with the phrases of his oath of workplace.
In his dissenting observe on some features of the bulk judgment, Justice Afridi defined that after an individual takes an oath underneath the Structure, he by his conduct topics all rights and privileges accessible to him underneath the Structure and the legislation which can be opposite to or not in consonance with the behaviour anticipated of a sitting decide as prescribed underneath the code of conduct.
Within the June 19 brief order, Justice Afridi had dismissed the petition moved by Justice Isa however endorsed the quashment of the reference by disposing of different petitions moved by quite a few bar councils and bar associations.
Nonetheless, Justice Maqbool Baqar, Justice Syed Mansoor Ali Shah and Justice Yahya Afridi had not agreed with the sending of the matter to the Federal Board of Income (FBR).
Justice Afridi declared the petition of Justice Isa not maintainable, including it starkly lacks one of many important circumstances – enforcement of elementary rights – for the Supreme Courtroom to invoke its authentic jurisdiction underneath Article 184(3) of the Structure.
Justice Yahya Afridi in his dissenting observe observes that elementary rights of a sitting decide would stay eclipsed as far as their enforcement will not be in consonance with phrases of oath
“More so, when the positive exercise of this jurisdiction by the apex court would in effect thaw the process of accountability of one holding a public office, be it a judge of the Supreme Court. Accordingly, the petition being bereft of essential constitutional requirements is non-maintainable,” Justice Afridi noticed, including admittedly there was no absolute bar on a sitting decide to resort to litigation.
However potential efforts ought to be made by judges to keep away from litigation and resorting to the identical ought to solely be made in dire want that too as a final inevitable choice.
And in case a sitting decide having no different potential various enters into litigation, he has to tread very rigorously and stay ‘cautious and forbearing’ to make sure that his actions don’t infringe upon the respect and dignity attributable to the esteemed workplace of the decide.
In search of to implement the elemental rights to problem the very expenses in opposition to him to be extremely vires and that too with out withstanding the prescribed inquiry would negate the very spirit of the oath taken by the petitioning decide.
He mentioned any instructions by the Supreme Courtroom setting steps for the Supreme Judicial Council (SJC) to comply with and that too with out listening to the counsel for the events on the problem made on the jurisdiction and bona fide of the council can be untimely and offend the precept of pure justice.
On data in opposition to the decide obtained and disclosed unlawfully, Justice Afridi remarked that if admitted it might fall inside the mischief of “information from any source” underneath Article 209(5) of the Structure.
“Thus it would remain the discretion of SJC to decide whether based on the admitted information it would suo motu proceed against the sitting judge or otherwise. Any finding by this court on the probative value of the information or any direction to SJC to act in a particular manner, and that too at this stage, would not only be premature but also amount to usurping the constitutional domain of SJC.”
Concerning the criticism by journalist Abdul Waheed Dogar, Justice Afridi noticed that the international property highlighted within the criticism had been admitted by Justice Isa to be owned by his spouse, Ms Sarina Isa. Due to this fact, any adverse aspersions in opposition to Mr Dogar, at the very least to the extent of the adjudication of the current petitions, had been legally insignificant, if not completely irrelevant.
On the authorized sanction for establishing the Asset Restoration Unit (ARU), Justice Afridi noticed that passing a particular discovering on the authorized standing of ARU can be pointless, if not legally incorrect.
On confidentiality of the revenue tax returns, Justice Afridi mentioned the revenue tax officers, who had been the custodian of the data, had been commanded underneath the legislation to protect the identical and in case of any breach thereof, the offender was to face penal penalties underneath the Earnings Tax Ordinance (ITO).
“However, this confidentiality of information would in no way prevent the competent income tax officials to seek from the assessee, the source of funds for the acquisition of any assets and in case the competent income tax official was not satisfied with the explanation for the source of funds he can departmentally proceed against the assessee for non-declaration and mis-declaration of assets under the enabling provisions of ITO.”
Prima facie, preserving in view the chain of instructions emanating from the legislation minister resulting in the illegal disclosures of confidential data by the revenue tax officers, all individuals who had been a part of this, have uncovered themselves to penal prosecution for fee of offences underneath Part 189 learn with Part 199 and part 216 (1) of the ITO, he added.
Printed in Daybreak, October 24th, 2020