Judge Isa and the big picture

The writer is a lawyer.

In Pakistan, the Money Trail (™) is in the eyes of the beholder. One of the many pseudo-legal terms that have crept into the common currency after Panama, “money trail” is the cowardly equivalent of “revenue”. Beyond that, it’s pretty informal. The Prime Minister presented one to the Supreme Court; a former prime minister presented one to the SC and a JIT; and the CPEC president submitted a four-page message on Twitter.

With such illustrious alumni, Money Trails regularly piques the interest of 220 million “spectators”. But the “public” for whom s.184 (3) cases are “important” seldom form their opinion by reviewing judgments two inches thick. Instead, he reaches out to other trusted people, who guide them down the path of least resistance and most buzzwords – from ‘money trail’ to ‘mafia’. “.

As such, the occasional disruption of court decisions is a common professional risk. It is easy to dismiss these views as opinions borrowed from uninformed dilettantes. But those who wish to base judicial decisions on moral legitimacy have two tasks ahead of them. The first is to demonstrate that the judgment respects the law. The other is to show that he respects the big picture.

This bigger picture is always so important in cases like this. The judiciary itself can only issue instructions and statements and have confidence that they will be acted upon. Without the moral legitimacy of the judiciary, the system collapses. Justice must be “seen” as being done.

With both goals in mind, we turn to the skeptic’s account. Judge Isa’s wife admitted to owning three apartments in London. How would a judge, let alone a judge’s wife, get the money to pay for three apartments in London? “Corruption”, perhaps? Only a “silver trail” could refute the allegation. Only the RBF could decide. Therefore, he should have been allowed to do so without interruption.

Yes, Judge Isa’s wife owned three apartments in London. There is nothing wrong with owning property abroad, as long as your answer to the following three questions is “yes”. Can you explain how you paid for it, without admitting a violation? If the money was Pakistani, did you legally send it overseas? And have you declared ownership where and when you are required to do so by law?

Two conceptual clarifications: “Money Trail” colloquially refers to several distinct issues that are seldom singled out. And a “no” to any of these questions does not automatically suggest “corruption”. If the money was not sent overseas through the correct banking channels, it may suggest money laundering. Not declaring a property that must be declared is a non-declaration. If there was a related obligation to pay taxes on it, that would be a case of tax evasion. Etc. But sentiment is seldom sensitive to such subtleties.

With that palate cleanser out of the way, what ultimately matters is that Serena Isa answered yes to all three questions. The combined value of the apartments was around 10 crore rupees. As a rough comparison, regardless of the price hike, a one-kanal house may cost you more in parts of Islamabad, Lahore, and Karachi. Serena Isa came from considerable independent wealth: she owned several hundred hectares of land in Sindh and Balochistan and added to it what she earned as a teacher in an American school in Karachi and the contributions of her children. adults. Ms. Isa sent all of her money for the apartments through the appropriate banking channels, and she voluntarily declared them as soon as the law required their declaration.

She took all of this to the Supreme Court, who told her she was happy with her response. He then sent it to the RBF, anyway.

This is where lawyers and laymen tend to separate. For the lawyers, the referral to the FBR had no legal basis. For ordinary citizens, it’s a technicality: why resist if you have nothing to hide?

First, the legal objections. Why was Serena Isa’s case referred to the RBF if the court was happy with its response? If not, why did she not ask for further clarification, as guaranteed by her constitutional right to a fair trial? Some mistakenly assume that Serena Isa just told an unsubstantiated story, which could only have been verified by the RBF. No.

Consider two other cases involving Money Trails and apartments in London – Imran Khan and Nawaz Sharif’s. In both cases, the Supreme Court, exercising its “inquisitorial” powers under section 184 (3), initially expressed its dissatisfaction. Both were allowed to further explain their positions. Eventually, the court told Imran that he was still a sadiq and ameen, and they told Nawaz that a JIT would be in contact. Serena Isa was not allowed to respond to the court’s concerns. And, according to the court, there was none left, to begin with. The Isa court expressed satisfaction as it did in the case of Imran, but ended up taking the road to Nawaz.

But there is more. In these cases, third parties demanded the disqualification of elected officials. Here, Judge Isa himself filed a petition claiming the presidential reference to him was malicious. The court agreed and then sent his independent wife and children – who had never even been a party before him – to the RBF.

And the Court did not just send the Isas to the FBR; they sent them to a unique limited edition version of RBF on steroids. The law tells taxpayers that they don’t need to keep records for the past six years. The Supreme Court ordered the RBF to probe – on a deadline – issues that would require cases from more than sixteen years ago. Had the RBF functioned as usual, Judge Isa could also have appealed a negative finding. Here, once the report was submitted to the Supreme Judicial Council, Judge Isa could have been sacked even before his regular appeal under tax law had been filed.

But, of course, there is the big picture. For the ordinary person, these are just loopholes. Whoever claims the moral authority of a judge should not hide behind asterisks and footnotes.

There are two answers to this. First, if legal concepts such as “jurisdiction” and “malice” are to be relegated to purely moral concerns, then it works both ways. The law required Imran Khan to declare ownership of his apartment. He does not have. Not only did he not declare it, but he also evaded the wealth tax. For almost two decades. In contrast, Serena Isa was just a case of non-reporting, and that too because the law did not require reporting at the time. Imran Khan only disclosed his property as part of a tax amnesty plan, after which, in the words of the Supreme Court, his “default” and “violation of tax laws were exonerated”. If legitimacy is to be painted on a purely moral canvas, then all we have is an empty sheet.

Second, what Serena Isa provided to the FBR was, by past standards, sufficient “money trail”. To understand why the RBF, unlike the SC, has claimed its displeasure, it is now our turn to show the big picture.

Recall that the Supreme Court has suggested the bias of investigative agencies in the past: it formed a JIT in Panama because the NAB was “indifferent and even reluctant” to side with the Prime Minister. It doesn’t take a lot of creative thinking to appreciate that another state agency might have a favorite as well. Remember the leak of confidential tax documents, conveniently falling into the hands of an unpretentious “complainant”. Recall that the original presidential reference has already been deemed malicious. Remember the Money Trail that put it all in motion: white envelopes with blue notes, handed out by mighty hands.

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

What the public is asking Judge Isa for is not just frankness before a neutral body. By berating him for filing his constitutionally guaranteed review, he demands a renewal for the same executive that filed the first corrupt referral. It has never been a case of bribery of a judge. At best, it was a legal non-declaration on the part of his wife. Backed by the larger farce of responsibility, he became something he never needed to be.

Just as important as trust in the law itself is trust in those who dispense the law. But the Supreme Court’s acceptance of Judge Isa’s review is not a case where judges band together to protect their own. It is simply the Court admitting that – from unleashing a supercharged FBR on a part that was never before it to creating a new hybrid form of suo motu for the Superior Council of the Judiciary for a reference without substance – she took things too far.

Pending the detailed judgment, it is ultimately up to the Court to demonstrate this. To prove that the law and the big picture are not at odds with each other. To prove, to those who doubt it, that after being positioned at one end, the Court did not end up at the other.

E-mail: [email protected]

Twitter: @brainmasalaar

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