The Supreme Court of Pakistan has quashed the Presidential Reference filed against Justice Qazi Faiz Isa, a SC Judge, over his alleged failure to disclose three expensive properties in London acquired by his family members some years ago. On Friday, a 10-member SC bench announced a majority verdict in this much-hyped case while disposing of a number of Constitutional Petitions challenging the said Reference on various grounds. This SC bench has referred this matter to the Federal Board of Revenue (FBR) directing the concerned tax officials to conclude relevant legal proceedings within 75 days after seeking explanation from the judge’s family members on the nature and source of funds used to acquire the said London properties. According to the short order, the Supreme Judicial Council (SJC) may take “appropriate” action under Article 209 of the Constitution once the FBR submits its report to the country’s premier judicial accountability and regulatory body.

Many believe that the apex court has thwarted what has largely been viewed as an ill-motivated move by the executive against a SC judge. Nevertheless, the honourable judge is still not out of the woods. Besides the petitioner judge, three judges of the SC bench have opposed the idea of sending this matter to the FBR. I also believe this verdict is unlikely to put an end to multiple controversies surrounding this sensitive matter. In fact, there is only a narrow scope of legal proceedings conducted by the FBR authorities against individuals who do not duly declare their assets in terms of Section 116 of Income Tax Ordinance, 2001.

The Inland Revenue Service (IRS) of FBR primarily seeks information from taxpayers regarding assets owned by them to reconcile their income with such assets So, it thereby tries to ascertain whether or not individuals had concealed their income while acquiring such assets. If individuals fail to offer plausible explanation for their undeclared assets, the tax authorities may treat undeclared assets as “unexplained income” of individuals in terms of Section 111 of ITO, 2001. In that case, the competent tax authorities may, at the most, make an order of audit of tax affairs of individuals. And finally, they may exonerate individuals after making an assessment order requiring them to pay due amount of tax and penalties for their undeclared assets. They can do nothing else at all.

Any assessment order passed by a competent IRS officer will remain inconclusive until it attains finality after exhausting all the legal appellate forums. Any assessment made against any member of the honourable judge by the FBR will hardly be conclusive until it survives scrutiny made by all appellate forums provided under the tax laws. Also, such legal process would take a considerable time. So, the pendency of such legal proceedings at any tax forum may prejudice the conclusive determination of the legal and factual questions involved in this case by the SJC. Interestingly, the IRS did not require any order from the SC to take up this matter since it was supposed to look into such matter once there was somewhat “definite information” about the concealment of income by a tax return filer.

The case under discussion is strictly a typical ‘assets beyond means’ case against the holder of the highest judicial office in the country requiring him to explain the source of funds for offshore assets owned by his family members. Ordinary tax proceedings may be advisable in case an ordinary citizen makes a misdeclaration of assets. Such kind of proceeding should definitely not be advised in case of misdeclaration or non-declaration of assets by any public office holder. Our country’s tax regime has also been very specific and sensitive about it. This is the reason the holders of public office have not been allowed to declare their hidden assets under various tax amnesty schemes introduced in Pakistan at different times. Therefore, notwithstanding the FBR submits its report as required by the SC bench, the Supreme Judicial Council would have to formally take up and decide this case to resolve this matter once and for all.

So far, only two references have been filed in the SJC against two different judges of the apex court in the country’s judicial history. However, both of these references have been blocked by the SC after declaring them as “non-maintainable”. Obviously, such practice may essentially not be in line with the ideals of accountability and rule of law. Ideally, once any allegation of misconduct or corruption is leveled against any judge of the superior judiciary, this matter should be examined and decided by the SJC, which is the only constitutional body to decide such questions, rather than blocking this move on technical grounds. The SJC should decide such cases on merit even if they are filed with mala fide intent by someone.

During the last few years, none other than the SC has evolved some high standards of accountability for public office holders in Pakistan. It has been proactively determining the question of disqualification of parliamentarians while exercising its extraordinary constitutional jurisdiction. It has shown a serving prime minister the door in a similar ‘assets beyond means’ case. Therefore, now the SC should readily adopt this ‘accountability model’ for its own judges too. I by no means doubt the integrity or credibility of the honourable Justice Faiz Isa who has rightly earned the reputation of being a competent, honest and upright judge. He, however, himself has been a strong proponent of the ‘principle of strict liability’ vis-à-vis misdeclaration or non-declaration of assets by a public office holder.

The apex court exercised its controversial extraordinary jurisdiction under Article 183(4) to oust former Prime Minister Nawaz Sharif in the Panamagate case. It was quite an unusual thing to form a JIT, comprising individuals from various intelligence and investigative agencies, to probe multiple corruption allegations against him. Later, he was disqualified on a flimsy ground of not disclosing his “un-withdrawn receivables”. In March 2009, Nawaz Sharif had organised and led a long march on GT Road to uphold the independence of the judiciary. Consequently, then President Asif Ali Zardari had to restore disbanded judges of the superior judiciary. It is ironic aspect of our chequered national history that, some 8 years later, this independent judiciary sent Nawaz Sharif back to home through the same GT Road.

No society can thrive without learning to accommodate some levels of dissent, dissonance and disagreement. An independent judiciary and free press are the sine qua non for a pluralistic society. I am afraid the current authoritarian tendencies in our polity would eventually lead us to a political cul-de-sac.