The price of autonomy

What is at stake here is not just judicial accountability but also judicial independence. Judicial accountability isn’t about lobbing dirt in some direction with the hope that some of it might stick. Judges should be held accountable for their conduct as judges. Those who misconduct themselves must not be allowed to don robes and sit in judgment over their peers. Equally, those who have no courage to act autonomously, unaffected by forces of coercion set in motion by state or society, can’t be arbiters pretending to protect rights of citizens against excesses.

Leaving out exceptions, there has been a rise of mediocrity and inability in public life over the decades. Safest are those who do nothing, take no initiative, offend no one, make no enemies, act timidly and bow in the wind’s direction. There is no accountability of good-for-nothingness. Also safe are those who know which side of one’s bread is buttered. These are assets to be protected by the state and the power elite running it. No one will ask about their performance, their actions, omissions or their spouses, so long as they know which feathers not to ruffle.

Those who can’t be controlled or blackmailed or coerced into doing what is 'required' are the real threat to the system. There aren’t many of these. But wherever there are, especially in public life, they are a thorn in the side of the de-facto system. The system can’t tolerate such righteousness. It can’t accommodate those who lack the discretion to figure out when the de-jure system is to run as it should and when it must make way for the de facto. Many fear that this is the form of ‘accountability’ Justice Isa faces for lacking discretion.

But let's face it. This is no accountability. It is a witch-hunt. It destroys idealism, breeds cynicism and acts as a barrier restraining the scrupulous from joining or remaining in public service. When practised within the judiciary, it destroys judicial independence without which there can be no rule of law. Rule of law is about enforcing the contract between the citizen and the state by applying declared principles in a transparent and consistent manner. The state must thus be subject to law and not above it.

The judiciary is our machinery for protection and enforcement of rights. Article 7 of the constitution deliberately leaves the judiciary out of the definition of ‘state’. The state is barred from employing laws or customs that breach the fundamental rights of citizens, and it is judges who sit in judgment to determine whether or not the state is holding its end of the bargain. But this scheme falls apart if the state is able to cajole or coerce judges into looking the other way in the ‘larger national interest’. You can either protect rule of law or such national interest.

Justice Isa crossed a red line when he called out the de-facto system and refused to exercise discretion or look the other way while adjudicating the Faizabad Dharna case. The uncomfortable questions he asked about role of the state in that sordid affair are part of public record, as is his judgment. If he gets away with such audacity, others might get ideas. That the de-facto system cannot afford. Control from behind the curtain is only effective so long as those on the stage act along (but without making it obvious they have strings attached that can be pulled).

Many will say that such lazy conspiracy theorizing in the name of high principles such as rule of law and judicial independence is a way to protect the status quo and the corrupt from across-the-board accountability. The day that the filing of a reference against Justice Isa made lead headline, the other lead headline was senior military officers being held accountable for espionage. Is this not what the idealists wanted all along?

So let's get to the merit of the charge against Justice Isa and whether the prime minister and the president should have framed it at this time. Justice Isa is accused of owning property in the UK in the name of his dependent spouse and children, which he ought to have declared on his wealth statement under Section 116 of the Income Tax Ordinance but didn’t. It is alleged that he thus acted in breach of the law and might even be liable for money laundering for acquiring properties abroad while serving as a judge and so has misconducted himself.

Let's get this out of the way: if Justice Isa’s wife and children acquired properties out of the judge’s income and he failed to declare that, then he is liable for misconduct. In that case nothing else matters, not the Faizabad Dharna case, not his reputation as an upright high-minded man, and not his pedigree. The big question is: did he? And without knowing for sure that he did, could the PM and the president exercise the authority vested in them as public officials to frame such damning charge and trigger a public trial scandalizing the judge and bringing him into disrepute?

Section 116 of the Income Tax Ordinance doesn’t require a filer to declare assets of a spouse or children if they are not his dependents. Our tax law puts in place an income tax regime, wherein assets on the wealth tax statement to be filed are products of taxable income rather than being assets taxable in their own right. In other words, every year you file an income tax return, and the form that your taxed income acquires is reported on your wealth statement. The assets on the wealth statement must reconcile with the income that has been offered up for tax.

The wealth statement is a balance sheet. Each year you file one that must balance against your income tax return and show any changes in your wealth. You can’t show assets on your wealth statement that haven’t been acquired by you from your income (or inherited by, or gifted to, you). You thus can’t show assets of your spouse or kids on your statement, unless you’ve acquired those assets in their name from your income. There is no basis for a reference against a Supreme Court judge unless the president and PM knew that the judge acquired the flats from his income.

Justice Isa has stated in a letter to the president that his spouse and children aren’t his dependents. If his wife acquired property in any way other than from the judge’s income, that can’t be ground for misconduct under Article 209. The income tax authorities can at best seek to raise a demand against his wife for non-payment of tax if the money she used to purchase the property was taxable in Pakistan. If the money used was not subject to tax in Pakistan (being proceeds from gifted or inherited property) there will be no claim against the wife either.

The current FBR chairman described scheme of the law in an article he wrote for 'Business Recorder' (https://fp.brecorder.com/2017/12/20171208325204/). He explained that the only relevant fact is whether the income used to acquire an asset is subject to tax and has been taxed. If the income isn’t subject to tax or if it has been taxed, disclosure of property in the wealth statement is an incidental matter. Did our PM solicit his FBR chief’s advice on whether non-disclosure of the wife’s foreign property by the judge constitutes an offence under our income tax law?

It isn’t good enough to say that if the judge has no skeletons in the closet he has nothing to worry about, as the Supreme Judicial Council will exonerate him. The shots have been fired and blood has been drawn. Whether Justice Isa survives or not, the message for the judiciary is clear: critiquing the functioning of the de-facto system is a line not to be approached. Is the legal fraternity expected to gladly regress to the time when the judiciary was seen (and acted) as weak?

The writer is a lawyer basedin Islamabad.

Email: sattar@post.harvard.edu