The enfant terrible: A pyrrhic victory for judge Isa?


By Arif Nizami

The very day BNP-M (Balochistan National Party-Mengal) announced quitting the PTI (Pakistan Tehreek-e-Insaf) ruling alliance, the prime minister in Karachi declared that the 18th amendment to the constitution needs to be fixed. Surely the timing was coincidental. But the irony was not.

On the one side the smaller provinces are demanding more autonomy (or at least affording them what is given in the constitution), while on the other hand the chief executive of the federation wants to clip their wings. Khan, in a pointed reference towards the Sindh chief minister Murad Ali Shah, lamented that chief ministers have become dictators post eighteenth amendment.

Perhaps there is an urgent need on the part of the rulers to study the chequered political history of the nation. The country is still reeling from the after-effects of Machiavellian schemes launched by self-serving politicians and authoritarian military dictators.

Pakistan was envisaged as a federation by its founding fathers. But hapless politicians and behind the scene mechanizations of ambitious military rulers had other ideas. East Pakistan, having a bigger population as a province, would be more dominant than the four provinces of West Pakistan; it was feared since the very inception of the country.

ISLAMABAD: Hamid Khan Advocate Pakistan Supreme Court along with other lawyers talking to media persons after the apex court announced the verdict in Justice Qazi Faez Isa case on Friday afternoon. SCP quashed the Presidential Reference sent against Justice Isa.

Hence the government in its wisdom lunched a chimerical formula in the form of parity. Under the so-called ‘one-unit scheme’, West Pakistan became a single province announced by Prime Minister Chaudhry Muhammad Ali in 1954.

This act coupled with East Pakistan’s already less than proportionate seats in the constituent assembly, created resentments and doubts about the intentions of the establishment and West Pakistani politicians.

In October 1958 the scheming commander in chief general Ayub Khan took over the reins of the government through a coup d’état. A ‘strong centre’ was his mantra, which ultimately led to the break-up of the country.

It was general Ayub Khan’s successor coupster general Yahya Khan who restored status quo ante in 1969, thereby reinstating the four provinces of West Pakistan and doing away with the flawed ‘parity’ formula.

After the loss of East Pakistan, a truly federal parliamentary system was introduced in the consensual constitution in 1973 under the stewardship of Prime Minister Zulfiqar Ali Bhutto. But even Bhutto, a seasoned politician with a sense of history, could not outgrow the strong centre syndrome.

Within a year of taking over the reins of a truncated Pakistan, Bhutto dismissed the NAP (National Awami Party) and the JUI (Jamiat Ulema-e-Islam) coalition government in Balochistan. This led to a four-year-old insurgency that ultimately led to the PPP government’s down fall.

It was in this backdrop that to restore the federal parliamentary nature of the constitution- distorted by successive military dictators- a consensual amendment was passed. Both the PPP and the PML-N had learnt their bitter lessons while in exile. Hence a charter of democracy (COD) was signed by Benazir Bhutto and Nawaz Sharif in 2006 in London

Justice Qazi Faiz Isa

It was in this spirit that a new leaf was turned by devolving powers to the provinces and giving them a bigger slice of the financial pie in the form of the 7th NFC (National Finance Commission) Award by the PPP government in 2010. The idea behind the 18th amendment (to the constitution) was to reinstate the parliamentary and federal system under the1973 constitution.

Fast forward to now, a decade later, the PTI led federal government seems to be up in arms against the smaller provinces.

Obviously, the prime minister is miffed about the independence being shown by the Sindh chief minister. His government’s performance in the ongoing Covid-19 pandemic crisis is much more decisive and clear-headed in sharp contrast to the mushy approach of the federal government.

On the question of lockdown Murad Ali Shah’s stand has been vindicated. In a recent press conference Shah made fun of ‘the smart lockdown, selective lockdown’- terms coined by the prime minister- contending either there is a lockdown or no lockdown.

But perhaps a deeper malaise is the perception that somehow the provinces are having a ball at the expense of the federal government. Obviously, the protagonists of the 7th NFC award had assumed that the economy will grow and with it the piece of the pie to be shared.

It was envisaged that tax to GDP ratio, even if it grows by one percent annually, in a decade it would have added Rs 4.5 trillion in revenue to the present Rs 45 trillion to the kitty.

But unfortunately, the tax to GDP ratio has remained stubbornly stagnant hovering around 9 percent. Added to this is the alarmingly increasing losses of the SOEs (state owned enterprises) that have further impoverished the federal government.

These are no fault of the provinces. Instead of tinkering with the eighteenth amendment and reducing provincial share under a new NFC award, the federal government could be castigated by the provinces for the presumptive loss to the provinces in the form of additional revenues. Secondly, money being given to provinces is no dole. It is their constitutional right.

Nonetheless, the constitution is not a Gospel that cannot be amended by consensus, unfortunately hitherto lacking.

Khan might be satisfied that the four BNP-M National Assembly members and one senator leaving the ruling coalition will pose no immediate threat. But more than number crunching the present mindset needs to be altered.

None of Akhter Mengal’s demands are non-negotiable. But it is a sad state of affairs that Balochistan has been consistently treated as an enfant terrible of the federation?

Take the case of Supreme Court judge Qazi Faiz Isa who belongs to a well-known family of Balochistan. His late father Qazi Essa was one of the founders of the Muslim league before 1947.

But sadly, he faced a presidential reference that the apex court has quashed declaring it as invalid. During the hearings of justice Isa’s petition seeking the reference’s dismissal, it seemed not the judge but the government was on trial for filing a flawed and mala fide reference.

Isa’s lawyer, Munir A Malik claimed in court that the government brought in a reference against his client because it wanted to remove the judge who had given an adverse verdict in the 2017 Faizabad sit-in case. The judgement lamented the alleged role of the agencies when the TLP’s (Tehreek-e-Labbaik Pakistan) dharna participants received cash handouts from men in uniform.

It was a bit surprising though that it took Isa’s peer judges a year to throw out a reference that they have now declared mala fide in their judgement. In the meanwhile, Isa and his family were left to stew in their juice.

Babar Sattar, his erstwhile lawyer, has aptly tweeted: ‘unfortunately there is nothing to celebrate. More things change they remain the same’. In another tweet he added: ‘the apex court in its wisdom has left the door open for Shahzad Akbar in cahoots with the FBR (Federal Board of Revenue) to harass the judge and his family’.

It just might prove a pyrrhic victory for those distributing mithai (sweets) outside the Supreme Court building.

Heavens will not fall if an independent minded judge from Balochistan takes over as CJP (chief justice of Pakistan) in 2023- technically the year of the general elections. The government should concentrate on improving its governance rather than engaging in such shenanigans.

(The writer is veteran journalist and Editor, Pakistan Today. He can be contacted at Article courtesy Pakistan Today)