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Tuesday, December 6, 2022

Coping With a No-Win Situation

Whether an individual likes you or you like the individual does not matter, what matters is what is good for Pakistan. Legal interference in matters of national security must not cross a fail-safe line in this no-win situation.

By Ikram Sehgal

Suprem Court building in Islamabad. (Photo by Khalid Mahmood Wikimedia commons)

The row between the government and Justice Isa started in June 2019 when the government filed a Presidential Reference in the Supreme Judicial Council (SJC) against Justice Isa for owning foreign assets, unfortunately, it has now become a “hate triangle” involving the Supreme Court (SC) as a third party. Justice Isa was accused of misconduct over his failure to declare his wife
Ms. Sarina and children’s UK properties. These foreign assets had been declared by her in her tax statement. While there were could be procedural lapses no real wrongdoing could be established and therefore the Presidential Reference was squashed by the SC.

While the affair did cast a hint of shadow on the reputation of an SC judge, unfortunately, the matter thereafter turned ugly when the same SC ruling ordered that the Federal Board of Revenue (FBR) seek an explanation from the judge’s wife and children on the nature and source of funding for the UK properties in their names and submit a report to the SC Registrar. Revealing the details of her properties, Mrs. Sarina Isa meticulously submitted her money trail, tax records, bank documents, and property papers to the court. Coming from an affluent landed family, she mentioned the agricultural land gifted by her father, telling the tax authorities that her husband does not have any link to her London properties and that she declared the three London properties in tax returns filed in 2019.

Filing a review petition in the SC against the June 19 majority judgment Mrs. Isa expressed her embarrassment about the procedure making her assets public. She said she was perplexed why CJ Gulzar Ahmed, who also personally knew the petitioner, never asked the petitioner who lived next door about her properties once. Alleging double standards, she compared her case to that of PM Imran Khan who in her view had not been made to give a full statement in public about his UK properties which she listed and demanded the PM’s removal.

Not only did the SC became a party to the controversy but while Mrs. Isa made a personal accusation against the person of Imran Khan. While self-defense is her inherent right and is quite justified as a citizen to make such allegations, serious accusations made against any citizen let alone a PM must be a cause for caution. More so by demanding the PM’s removal the perception of her husband’s bias against Imran Khan became evident.

Incidentally, the “Imran Khan” Mrs. Isa mentioned in her petition as having properties in UK turned out to be another Imran Khan. Someone fed her wrong information about the PM. She should have been more careful, her emotional reaction opened up another can of worms which includes possibly (1) defamation of character (2) making of fake allegations and (3) perjury since the affidavit is under oath.  Ironically, theoretically, at least, Justice Isa is accusing his detractors for more or less the same.

The latest chapter in the melodrama was the (obviously wrongly reported by the media) announcement that the PM had allocated Rs500 million public funds to be distributed among the parliamentarians for carrying out development schemes in their constituencies. Though this illegal practice has been in vogue by previous governments since Gen Ziaul Haq’s rule without the judiciary taking notice. The PM denied these allegations in front of the SC and stated that no money would be given. Justice Isa then produced an unverified “WhatsApp” message from an anonymous source that seemed to show money distribution in NA-65 and requested that this message be taken seriously.

Because anonymous accusations are not tenable, the SC accepted the statement of the PM and the petition challenging the distribution of money was rejected. In addition to the dismissal, the CJ in the written order noted that since Justice Isa had in his personal capacity filed a petition against PM Imran Khan, it “would not be proper” for the former to hear cases involving the PM in order “to uphold the principle of unbiasedness and impartiality”.

The November 2020 petition demanding the PM’s removal and the production of an anonymous unverified document by Justice Isa implicating the PM have obviously resulted in the understanding of the CJ that Isa now has a personal grudge against Imran Khan whether in his personal or official capacity. Keeping the past events in mind this seems plausible and if so, this would really tarnish the standing of Justice Isa. Furthermore, Justice Isa’s 28-page rejoinder to this ruling in fact reinforced the perception that the CJ has a point.

The reality is different, the Honourable Justice’s ire is directed against the military, in particular the intelligence hierarchy. Imran Khan becomes “collateral damage” in the crossfire. A seasoned judge like Justice Isa is expected to know that the service of justice, should never be personalized, even as a reaction to the initial attack at Justice Isa and his family.  To reply in kind should have been below the dignity of an SC judge. The Honourable Justice has harmed his own reputation, also by targeting the Chief Justice (and by implication other Justices) who ruled against him, he has in the unfortunate process undermined the image of the apex court of the country.

Justice Faiz Isa is a fine judge and has a very keen legal mind expressed lucidly in many judgments. One personally likes him for both personal and professional reasons. However, there are instances when a fail-safe line should not be crossed, particularly where the military is concerned a quiet admonition is far better than public flagellation. He has taken to frequently cross swords with the uniformed ones more often than not and perception has grown that he dislikes the Army.

While everything that the Pakistan Army does cannot always be right, there are aspects of national security where the “Marquess of Queensbury” rules do not apply, sometimes the Army has to take initiatives in the national interest to protect the integrity of the State and the well-being of its citizen.  Those who carry out such functions on behalf of the Army do so out of the good of the State, certainly not out of personal interest.  While Justice Faiz Isa, as an activist Judge, has every right to crack down on such actions he must be able to differentiate between what is good for the State in the national interest and what is done out of personal interest.

Pakistan today remains in a precarious state mostly not of our making. While the economic side is relatively better despite the ravages of the pandemic that for a short time hampered recovery, we are still facing multiple crises. With a belligerent India today determined to try and destroy us, our Armed Forces remains an effective and tremendous deterrent that is a compliment by an intelligence apparatus that is pro-active.

In this situation, professionalism and competence must go hand in hand with outstanding leadership, particularly at the senior hierarchical level. With the national interest paramount there is no friendship or enmity, in either case, objectivity must prevail.  What matters is to get the job done without being subjected to motivated moralizing of the judicial kind. Consider US Justice Oliver Wendell Holmes’ concept of a “clear and present danger”.  A person gets up and shouts “fire, fire” in a movie theatre and causes a stampede, as people rush towards the exits dozens are killed or injured.  What law do you apply when the person who was the cause for many deaths and injuries pleads he was exercising his “freedom of speech”?

While the Armed Forces have virtually destroyed the capacity of the militants in Swat and FATA to wage war against the state, with the fighting in Afghanistan has still not ceased and spilled over into Pakistan from time to time, peace is still in a twilight zone. Intelligence-based operations (IBO) must continue to ensure terrorism does not rear its ugly head again. Real-time information gathering at the lower level should reflect reality, not personal motivation or bias. One must give credit to the intelligence hierarchy for a fine job in making correct analysis.

Paraphrasing Richard Nixon, “Not debating a decision to death” during the last couple of years the decision-making has been timely and effective.  As much as it is a principle of war not to “reinforce failure”, we must reinforce success in the field has been achieved with great sacrifice and not put unnecessary obstacles in the way. The success cannot be hampered (or even derailed) by judicial activism playing to the gallery.  Whether an individual likes you or you like the individual does not matter, what matters is what is good for Pakistan. Legal interference in matters of national security must not cross a fail-safe line in this no-win situation.

(The writer is a defense and security analyst).

 

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