Substance and sentiment – Raoof Hasan

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The Supreme Court, by a majority decision of six to four, has overturned its own former judgement which had ordered the FBR to conduct an enquiry into three foreign properties allegedly owned by Justice Qazi Faez Isa in the name of his wife and children.

The court has further rendered null and void the entire exercise that the FBR had conducted on its behest to investigate the alleged properties and evaluate the tax liability outstanding against Mrs Isa. The judgment further proclaimed that no forum, including the Supreme Judicial Council, would be empowered to pursue any proceedings in cases concerning Justice Isa and members of his family.

The judgment exonerates Justice Isa from any wrongdoing regarding possession of properties in the UK in the name of his wife and children. But, taking a leaf out of his judgement in the Hudaibiya Paper Mills case, the SC also outlawed the initiation of any further action in the matter, thus rendering the Isa family beyond the pale of the law. While reversing its earlier decision may be a matter of contentious legal debate, disallowing any further action in the matter raises serious moral concerns.

It may only be a coincidence that, in his judgement as a member of the bench handling the reopening of the Hudaibiya Paper Mills case, Justice Isa had not only banned further proceedings in the matter at any available forum, he had also disallowed all discussion regarding the merits and demerits of the decision in the media. An order was issued for Pemra to ensure complete implementation of the court injunction.

In the present instance, what were the factors which convinced the bench to not only reverse its earlier decision, but also provide unprecedented immunity to Justice Isa and family from any further enquiry by any state institution? On the one hand, the question falls within the ambit of the law and, on the other hand, it is a matter of simple ethics whether unimpeachable relief can be provided to any individual from accountability?

The case is a simple one. A thorough investigation by the Asset Recovery Unit (ARU) found that Justice Isa owned three undeclared properties in London in the name of his wife and children. The source used to acquire these properties was not accounted for, nor were they declared in the respective wealth reconciliation statements filed by Justice Isa.

In light of these facts, the president of Pakistan moved a reference asking the SJC to enquire into the matter as envisaged under the law, and submit a report in terms of Article 209 (6) of the constitution.

Justice Isa is a judge of the Supreme Court. But, first and foremost, he is a citizen of Pakistan with rights and responsibilities which are contained in the constitution. In addition to that, the judges of the superior courts are bound to discharge their duties “in accordance with the constitution of Pakistan” and also “abide by the code of conduct issued by the Supreme Judicial Council”. In a case reported as the President vs Mr Justice Shaukat Ali PLD 1971 SC 585, the opinion of the SJC has also been recorded: “In our view, a greater degree of propriety is demanded from a judge. He should not only avoid any action which is improper, but should also avoid doing anything which might even give the appearance of impropriety”.

There are two separate issues which emanate from the above-stated facts: the constitutional and the ethical. A judge is bound by both to subscribe to the highest benchmarks so as to be perceived not only as the fountain of dispensing justice to all without discrimination, but also followed as a role model of propriety. In the case under discussion, the ideal thing for Justice Isa to do once the presidential reference had been sent to the SJC would have been to disassociate himself from the court till the settlement of the case. Not only did he not pursue that course, he also remained a part of the court and pleaded his own case before the bench which adjudicated in granting him complete immunity.

It is painful to point out that, during the proceedings of the court, the substance of the case – pertaining to three questions vis the petitioner having any link with the foreign accounts of his spouse, any transactions made from these accounts and expenses incurred for the purchase of the three properties – was almost never discussed. Instead, Justice Isa kept talking about the immense pain the initiation of the case had caused to him and his family.

I don’t write with the intent to criticise the honourable judges. My belief in democracy is deep-rooted, and the centrality of the judiciary is a key constituent of that belief. I write because I am deeply hurt that the judiciary has not lived up to the laudatory pedestal the constitution has assigned it as one of the three pillars of the state. In fact, it is the key pillar which grants the state its constitutional legitimacy and moral stature.

History might judge that the judiciary has erred on two counts. While the legal component may be debated over time by the constitutional experts, it is very unfortunate that the ethical aspect has been gravely compromised. In the midst of a general moral collapse, the judiciary is to lead the way for resurgence of the state.

The judiciary is important. Judges are important, too. But none can prosper at the cost of justice. In a choice between substance and sentiment in the domain of the law, the former should inevitably prevail. It is then that the sanctity of justice would be held paramount. Unfortunately, not all judges think this way.

The writer is the special assistant to the PM on information, a political and security strategist, and the founder of the Regional Peace Institute.