IF YOU read the June 19 short order in the Justice Faez Isa case with the worst possibilities in mind, a whole host of nightmares begins to surface.
It begins without controversy, with all 10 judges quashing the reference against their brother judge, and setting aside the show cause notice issued to him.
Seven judges then direct Justice Isa’s wife and children to offer separate explanations regarding the nature and source of funds through which three foreign properties were acquired. They are to be served notices by the commissioner of the FBR within seven days at the official residence of the judge. The judge’s family members have been referred to as respondents and directed to furnish replies and all relevant material and record. They have been warned that the proceedings before the commissioner shall not be adjourned or delayed if they are unavailable or abroad.
Within 60 days from the day the respondents receive the notices, the commissioner is to conclude proceedings, and issue an order within 15 days thereafter. He too is warned against adjournments or extensions.
Once the commissioner issues the order, the FBR chairman shall submit a report to the SJC within seven days along with the entire record of proceedings.
The Chairman of the Supreme Judicial Council shall have the report put before the council. Any orders, decisions or proceedings shall be done in exercise of the council’s suo motu jurisdiction.
If 100 days pass without any report from the FBR, the secretary of the SJC shall intimate the same to its chairman. The latter may order that the matter be placed before the council anyway; “for such perusal, consideration, action, order or proceedings, if any, in relation to the petitioner (or any other person as deemed appropriate) as the council may determine”.
Why was such a detailed process of FBR-related inquiry laid out by the Supreme Court? Why was a judge’s family issued directions, with deadlines, to cooperate with the FBR and why were they ostensibly brought within the purview of the Supreme Judicial Council?
Why were the SJC’s ‘suo motu’ proceedings separated from the process the FBR was directed to complete? Why was the Chief Justice of Pakistan directed to act once in receipt of the FBR report in his capacity as chairman of the SJC?
To the legal sceptic, recent memories of the Panama JITs and monitoring of judges coordinating via WhatsApp calls come roaring back.
Is the government being allowed a chance to once again get Justice Isa through pressure on the FBR? Isn’t this what they always wanted _ a chance to get rid of their surveillance goof-ups and the Asset Recovery Unit’s illegal inquiries and to make it a simple matter of tax anomalies and unsubstantiated wealth?
But as the hearings have made it clear, this had stopped being about the law a long time ago _ around the time the then attorney general began maligning judges sitting on the bench and later when Farogh Naseem left the tax law requirements alleged to have been violated behind and argued instead about Justice Isa’s responsibility for his wife in the light of Islam.
As the judges have made it clear, an incompetent executive will have to answer for its attacks upon judicial independence, for its slipshod accountability drive.
This is about the judiciary fighting off a political, public threat to itself, where the fighting has been dirty from the start.
Judges have been maligned on social media. Their personal standards of accountability have been derided as being farcical, the Arsalan Iftikhar let-off used as an example, Justice Isa cited as a repeat.
The government has held press conferences about a sitting Supreme Court judge, political parties have filed for his judgements to be reviewed, arguing his lack of fitness for office.
A simple and surgical extinguishment of the reference would have made the legal problem disappear, but the political problem would have remained. The social media bots would have continued to misinform, the conspiracy mill would have continued to publicly churn out propaganda against a group of people who are bound by their oath and propriety to silence.
How do you counter that?
By allowing for the extraordinary and letting the judge’s wife address the 10-member bench. By giving her a forum to complain of the harassment her family has suffered, the pressure she has endured with grace and silence, the toll it has all taken.
By letting her rubbish the supposed issue of a mismatch in her identity documents.
By having the media witness her do a stellar job of tracing hundreds of acres of ancestral and inherited land for each holding.
By allowing her to present a thorough account of her wealth — something our current prime minister was unable to do before being let off by the Supreme Court. By having her cite official banking channels through which all the funds were remitted, have her explain how the worth of each property in England is worth roughly that of a house in an upmarket part of Karachi.
By watching as she brings a packed courtroom to pindrop silence.
The head of the bench commended her for presenting the money trail and stated that the bench was satisfied with it.
Knowing the answer exists, the FBR is then told to process the question forthwith. The SJC is activated, but insulated from executive meddling and directed to act on its own.
Ten of our most senior judges have just seen a brother judge have his name dragged through the mud, and then seen his wife tear to shreds the accusations against him. Some of them have remarked on the federation’s case with sarcasm, others with bewilderment.
Seven of them have decided to let the FBR investigate, within the bounds of the income tax law alone. There is a definite human angle at play here.
If one were to look at Friday’s short order through a more human and perhaps political lens, one would find it presents an opportunity for a masterful destruction of a creeping narrative.
No more clean chits without inquiry like Iftikhar Chaudhry’s. No chance for anyone to point fingers later and allege nepotism or favouritism. No one is above inquiry, all 10 lords agree.
Who better to present for audit than Justice Isa and his family, who have self-audited in public for the past 13 months. But as the detailed judgement might make it abundantly clear, an incompetent executive is bad enough, but to be a malicious one on top of it has consequences.
The writer is a lawyer and tweets @jaferii.
Published in Dawn, June 29th, 2020