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May 8, 2021

Justice Isa and the Bigger Picture

The writer is a lawyer.

In Pakistan, the Money Trail (™) is in the eyes of the beholder. One of several pseudo-legal terms to have crept into common currency, post-Panama, ‘money trail’ is the loose equivalent of ‘the receipts’. Beyond that, it is fairly formless. The prime minister presented one to the Supreme Court; a former prime minister submitted one before the SC and a JIT; and the chairman CPEC submitted a four-pager on Twitter.

With such illustrious alumni, Money Trails regularly pique the interest of 220 million ‘beholders’. But the ‘public’ for whom cases under Article 184(3) are of ‘importance’ rarely forms its opinion by examining two-inch thick judgments. Instead, it extends its hand to trusted others, who guide them through the path of least resistance and most buzz-words – from ‘money trail’ to ‘mafia’.

As such, the casual disembowelment of judicial pronouncements is a common occupational hazard. To dismiss these views as the borrowed opinions of uninformed dilettantes is easy. But those who wish to ground judicial decisions in moral legitimacy have two tasks before them. One is to demonstrate that the judgment respects the law. The other is to demonstrate that it respects the Bigger Picture.

That Bigger Picture is ever so important in cases like this. The judiciary itself can only issue directions and declarations and trust that they will be acted upon. Without the judiciary’s moral legitimacy, the system falls apart. Justice must be ‘seen’ to be done.

With both goals in mind, we turn to the narrative of the sceptic. Justice Isa’s wife admitted to owning three flats in London. How would a judge, let alone a judge’s wife, get the money to pay for three flats in London? ‘Corruption’, perhaps? Only a ‘money trail’ could rebut the allegation. Only the FBR could decide this. Therefore, it ought to have been allowed to do so, uninterrupted.

Yes, Justice Isa’s wife owned three flats in London. There is nothing wrong with owning property abroad, so long as your answer to the following three questions is ‘yes’. Can you explain how you paid for it, without admitting to an offence? If the money was Pakistani, did you send it abroad legally? And did you declare the property wherever and whenever the law required you to?

Two conceptual clarifications: ‘Money Trail’ colloquially refers to several distinct questions that are seldom distinguished. And a ‘no’ to any of these questions doesn’t automatically suggest ‘corruption’. If the money wasn’t sent abroad through proper banking channels, that may suggest money laundering. Failure to declare a property that must be declared is non-declaration. If there was a connected obligation to pay tax on it, it would be a case of tax evasion. And so on. But sentiment is seldom sensitive to such subtleties.

With that palate cleanser out of the way, ultimately what matters is that Serena Isa answered all three questions affirmatively. The combined value of the flats was around 10 crore rupees. As a crude comparison, without factoring in rising prices, a one-kanal house can cost you more in parts of Islamabad, Lahore and Karachi. Serena Isa came from considerable independent wealth: she owned several hundred acres of land in Sindh and Balochistan and added to that what she earned as a teacher at an American School in Karachi and the contributions of her grown children. Mrs Isa sent all her money for the flats through proper banking channels, and she voluntarily declared them as soon as the law required their declaration.

She presented all of this before the Supreme Court, which told her that it was satisfied with her response. It then sent her to the FBR, anyway.

This is where lawyers and laypersons tend to go their separate ways. To lawyers, the referral to the FBR had no basis in law. To ordinary citizens, this is a technicality: why resist if you have nothing to hide?

First, the legal objections. Why was Serena Isa’s case sent to the FBR if the court was satisfied with her answer? If it wasn’t, why didn’t it ask for further clarification as guaranteed by her constitutional right to a fair hearing? Some mistakenly assume that Serena Isa just narrated an uncorroborated story, which could only have been verified by the FBR. Not so.

Consider two other cases involving Money Trails and London flats – Imran Khan and Nawaz Sharif’s. In both, the Supreme Court, exercising its ‘inquisitorial’ powers under Article 184(3), initially expressed dissatisfaction. Both were allowed to explain their positions further. Eventually, the Court told Imran that he was still sadiq and ameen, and they told Nawaz a JIT would be in touch. Serena Isa wasn’t allowed to address the concerns of the Court. And, per the Court, it had none left, to begin with. The Isa Court expressed satisfaction as it did in Imran’s case, but ended up going the Nawaz route.

But there’s more. In those cases, third-parties sought the disqualification of elected officials. Here, Justice Isa, himself filed a petition claiming that the presidential reference against him was malicious. The Court agreed, and then sent his independent wife and children – who were never even parties before it – to the FBR.

And the Court didn’t just send the Isas to the FBR; they sent them to a one-time limited-edition version of the FBR on steroids. The law tells taxpayers that they don’t need to maintain records past six years. The Supreme Court directed the FBR to probe – on a deadline – matters that would require records from over sixteen years ago. Had the FBR been operating as usual, Justice Isa would also have been able to appeal a negative finding. Here, once the report was placed before the Supreme Judicial Council, Justice Isa could have been sacked before his ordinary appeal under tax law had even been filed.

But, of course, there’s the Bigger Picture. To the ordinary person, these are just loopholes. Someone claiming the moral authority of a judge ought not to hide behind asterisks and footnotes. There are two responses to this. First, if legal concepts like ‘jurisdiction’ and ‘malice’ are to take the back seat to purely moral concerns, then that cuts both ways. The law required Imran Khan to declare ownership of his flat. He did not. Not only did he not declare it, he evaded the payable wealth tax on it as well. For close to two decades. By contrast, Serena Isa’s was only a case of non-declaration, and that too because the law didn’t require a declaration at the time. Imran Khan only disclosed his ownership under a tax amnesty scheme, after which, in the words of the Supreme Court, his “default” and “violation of tax law stood exonerated”. If legitimacy is to be painted on a purely moral canvas, then all we have is an empty sheet.

Secondly, what Serena Isa provided to the FBR was, by past standards, a sufficient ‘Money Trail’. To understand why the FBR, unlike the SC, claimed dissatisfaction, it is now our turn to point to the Bigger Picture.

Recall that the Supreme Court has suggested the bias of investigative agencies in the past: it formed a JIT in Panama because NAB was ‘indifferent and even unwilling’ to side against the prime minister. It doesn’t require much creativity of thought to appreciate that another state agency might also have a favourite. Recall the leak of confidential tax documents, conveniently falling into the hands of an unassuming ‘complainant’. Recall that the original presidential reference has already been found to suffer from malice. Recall the Money Trail that set all of this in motion: white envelopes with blue notes, handed out by powerful hands.

The Bigger Picture concerns are answered by just that – the Bigger Picture.

What the public asks of Justice Isa is not just candour before a neutral body. In chiding him for filing his constitutionally guaranteed review, it demands a do-over for the same executive that first filed the tainted reference. This was never a case of a judge’s corruption. At best, it was legal non-declaration by his spouse. Buoyed by the broader farce of accountability, it became something it never needed to be.

Trust in those who dispense the law is just as important as trust in the law, itself. But the Supreme Court’s acceptance of Justice Isa’s review isn’t a case of judges banding together to protect their own. It is simply the Court accepting that – from unleashing a supercharged FBR on a party that was never before it to creating a novel hybrid form of suo motu for the Supreme Judicial Council for a reference with no substance – it took things too far.

As we await the detailed judgment, it is ultimately for the Court to demonstrate this. To prove that the law and the Bigger Picture are not at odds with one another. To prove, to those who doubt it, that after positioning itself at one end, the Court didn’t end up at the other.

Email: [email protected]

Twitter: @brainmasalaar