The farce of accountability
https://arab.news/9n3tw
Several years ago, when I was a first year law student at the University of California in Los Angeles, we were taught, in the first week of our instruction, a fundamental principle of justice--that it was better to let ten guilty persons go free than to convict an innocent.
Although there have been disagreements among jurists on the blackstone ratio, as it came to be called-- on whether the correct number should be ten or five or a hundred-- there are no disagreements on the maxim itself, which became integral to both the British legal system and American common law, often followed in Pakistan.
Looking to the Islamic tradition, as Pakistan is also wont to do, Prophet Muhammad reportedly said, "It is better for a judge to err towards leniency than towards punishment." He is further said to have advised, "invoke doubtfulness in evidence during prosecution to avoid legal punishments."
Drawing from both the common law and Islamic legal traditions therefore it should be cardinal that one is innocent until proven guilty. And yet, the accountability process in Pakistan has taken a course contrary to these age-old values of justice and fair dealing.
For ten months, Qazi Faez Isa, a man of good reputation who had no corruption allegation against him, was the subject of intense scrutiny on the basis of a flimsy judicial reference filed against him, alleging that he was the beneficial owner of three properties in London in his wife's name, which had not been disclosed in his wealth statement.
Even if we overlook the fact that the FBR is an arm of the government and hence won't be able to investigate independent of bias, is this really the direction in which Pakistan's accountability process should be headed? We have, in PTI's own words, "sugar mafias," "petrol mafias," "water-tanker mafias," "land-grabbers," and the list goes on. Yet here we are, in the midst of a pandemic, harassing a judge's wife about her taxes, when she has already satisfied the Court that the source of her wealth is legitimate.
Ayesha Ijaz Khan
Ironically, the reference against him was filed by none other than President Arif Alvi, who has been rightly mocked on Twitter for suggesting, back in 2013, that Mr Isa should become governor of Balochistan, as he was "an honest man." Another PTI stalwart and current minister, Shireen Mazari, responded to the tweet by asking why he shouldn't just remain a judge, as we need "strong honest judges...to fortify the judiciary."
Fast forward to 2020, Mazari is silent and Alvi is persecuting the same man he once held in such high regard. What has changed? The most obvious answer is that while an honest judge may be worth celebrating when he gives verdicts that are embarrassing to political opponents, he will not be tolerated when he questions the machinations of those who have brought PTI to power.
Qazi Faez Isa's wife has provided the money trail. It turns out she is independently wealthy and Justice Isa is not the beneficial owner of the properties, as alleged in the reference. The reference against him has been declared invalid. We have not been told in the short order the Court's reasons for declaring it invalid but this much is clear--the government had no case.
Is it fair then to have tarnished his reputation? Is it fair to drag him and his family through 40 hearings just to establish his innocence? In a just system, those who filed the reference without basis should be held accountable. Instead, Justice Isa may not be out of the woods yet. Even though the reference against him has been quashed, the Federal Board of Revenue has been directed to investigate his wife's tax records.
Even if we overlook the fact that the FBR is an arm of the government and hence won't be able to investigate independent of bias, is this really the direction in which Pakistan's accountability process should be headed? We have, in PTI's own words, "sugar mafias," "petrol mafias," "water-tanker mafias," "land-grabbers," and the list goes on. Yet here we are, in the midst of a pandemic, harassing a judge's wife about her taxes, when she has already satisfied the Court that the source of her wealth is legitimate.
Justice Isa's counsel has told the Court nevertheless that his wife has, in some years, paid more income tax than the Prime Minister himself. Moreover, Justice Isa has asked whether Prime Minister Khan has declared all the properties and assets of his sons and various wives when he was married to them respectively in his wealth statements?
Surely the good judge cannot be pinned to a higher standard than the Prime Minister, particularly one that has already been declared "sadiq and amin" by the Court.
The verdict is certainly not a win for all, as some are trying to paint it. If an innocent man's reputation has been damaged, then those who damaged it must apologise and withdraw the case immediately. If they continue to harass him then two concerns become paramount. What is the price of speaking truth to power in Pakistan? And why is it that in our judicial history, when it comes to politically charged cases, the dissenting judges come out looking more honourable than the majority?
*The writer is a lawyer in London who tweets @ayeshaijazkhan
