Justice Isa Case: Judgement from here to nowhere

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By Wajid Shamsul Hasan

The beauty of the judgement in Justice Faez’s isa’s reference is that it does not apportion a victory for any one. In the daze of its short announcement, it created euphoria on both sides. However, when looked into the depth of it, it is neither here nor there but it surely is well couched in a perception that it would surely deliver for the deep state whose head was overly fond deeply involved in a conspiracy to waylay an elected government to pave way for a selected prime minister who would be no better than a puppet dancing to the tunes played by the military’s band piper.  

I took interest as a student in the proceedings of the reference before ‘ten wise men’ as I have done in such high profile cases from my student days. And as usual I was not hoping the honourable Supreme Court to deliver judicial miracles. Neither did I build high hopes expecting the judges to rewrite judicial history correcting the previous fault lines making the Supreme Court subservient to the executive and now deep state. Indeed, the ‘selected ten’ instead of chartering a healthier course seems to have –after much hullabaloo to an apogee of high crescendo of national aspirations—fallen to the lowest depth of ridicule.

The ‘ten wise men’ have reinvigorated the widely held perception that a large number of judges and members of the journalistic community would continue to act like the unbending proverbial tail of the dog despite being put in an iron- cast for thousand years to straighten it–failed. It is too mild to say that the people have been once again let down when they needed truth to be spoken and the sanctity of the constitution to be preserved.

Time and again our judges have been accused of betraying the trust reposed in them by the masses especially at a time when democracy is under the plethora of onslaught from various vested interests. It was the most despicable moment in our judicial history when these ‘ten wise men in robes’ totally ignored the criminal mala fide intent expressed in the overly flawed reference against honourable Justice Faez Isa by the President who a few years ago wanted Justice Isa to rightfully deserved to be made Governor of Balochistan. Current Human Rights Minister Dr Shirin Mazari enamoured by Justice Isa’s uprightness wanted him to remain Chief Justice of Balochistan High Court and go up.

Justice Qazi Faez Isa

In the follow up of not so historic a judgement by the ‘ten’, I found very interesting comments on various aspects of the judgement made by leading lawyers such as Barrister Faisal Siddiqui, Ayesha Ejaz Khan of London, commentator/anchor Talat Hussain to name a few. All pointing out the loop holes left openly glaring to mock at the Honourable Supreme Court.

Not going into the intricacies or legalities of the reference, my humble observations are not far from the truth. I have been a witness to Pakistan’s judicial history since the early fifties. I am grateful to my late guru journalistic historiographer—Zamir Niazi—for having laid bare in his monumental book “PRESS IN CHAINS” how “a judiciary with eroded authority and a muzzled Press played havoc with the destiny of the nation.” Indeed, had the members our superior judiciary and those in the media who had claimed to be part of Quaid-i-Azam’s bandwagon played their roles with equanimity without bartering their independence for self-dividends in the formative phase, our democratic institutions by now would have been formidable enough to withstand any extra-constitutional pressures and conspiracies by the ambitious generals. They would not have crumbled one by one over the years giving birth to Hitler-like authoritarianism that we see unfolding in its present form that at best could be described as Khaki or democracy at gun-point.

As we look back in the context of judgement in Justice Isa’s reference, we see Pakistan’s initial history as a catalogue of compromises, follies and intrigues by both judges and journalists. Remember that no many voices were raised when Quaid’s historic speech on August 11, 1947 declaring that religion will have nothing to do with the business of the state was censored on the orders of the self-styled Secretary General of the GoP Choudhri Muhammad Ali. Not only that, when Governor General Ghulam Muhammad, Choudhri Muhammad Ali, Major General ® Iskandar Mirza and General Ayub Khan plotted to replace Prime Minister Khawaja Nazimuddin with a puppet of their own to pave way for an ultimate take over by them, according to Zamir Niazi then “the Press became a willing tool” in their hands.

I recall as a youngster living opposite Prime Minister Khawaja Nazimuddin’s residence coming across blitzkrieg demonstrations  against Khawaja Sahib by handful of Jamaat-i-Islami rabble rousers against the “the most honest and the gentleman prince among politicians ” who was dubbed as “Quaid-i-Qillat” and forced to resign. Had he not refused to quit on engineered pressure by Establishment’s ‘B’ team—, the Governor General would have sacked “the Prime Minister” and, if need be, suspend the Constitution.

The anti-Khawaja Nazimuddin media diatribe was a command operation followed by his dismissal by the Governor-General. The tragic turn of political events had thus created a constitutional crisis and posed a serious challenge for the superior judiciary. It needs to be mentioned here that the Sindh Chief High Court (as it was known then) acted in the letter and spirit of the constitutional law of the land, showed exemplary courage, conviction and honesty and declared Governor-General’s proclamation of dismissing the Constituent Assembly as “unconstitutional and void”.

This landmark judgement by Chief Justice Constantine in Maulvi Tamizuddin Khan Vs the State of Pakistan—can be described as a crown jewel on the judicial body marred by scars of inglorious performance as those inflicted on the nation by Chief Justice Muhammad Munir who later even gave legitimacy to Ayub’s Martial Law under the Doctrine of Necessity. And ever since then every successful military dictator has had a judicial sanction.

Pakistan is a vast desert of lawless jackboots where we have had judicial flowers as well. Like Chief Justice Constantine of Sindh Chief Court, his colleague Justice Mohammad Baksh Memon, Federal Court judge Mr Justice Cornelius who disagreed with Justice Munir and wrote a dissenting note that since the Constituent Assembly is a body representative of the will of the people; it cannot be surpassed by the arbitrary act of an individual.

While we have had a whole lot of rotten eggs in our judicial basket such as Munir, Anwarul Haq, Maulvi Mushtaq, Qayum, Rashid Aziz and Saqqib Nisar to name a few, Pakistanis would always feel proud of judges like M.R. Kiyani, Safdar Shah, Tufail Ali Abdur Rahman, Muhammad Haleem, Dorab Patel, Samdani, Waheeduddin Ahmed, Hamoodur Rahman,  Aslam Zahid, Khuda Baksh Marri, Fakhruddin G. Ebrahim, Tariq Mehmud and Justice Qazi Faez Isa. Besides, don’t forget the infamous four who hanged martyred Zulfikar Ali Bhutto on the orders of General Ziaul Haq. 

Among the judges who stood by their principles I remember Justice Tariq Mehmud. He refused to become a party to General Pervez Musharraf’s referendum fraud. He had shown extra-ordinary courage to defy pelf, power and bayonet. He also quit as a member of the Election Commission in protest against the unconstitutionality of  GPM’s referendum. He spilled the beans when he told the BBC that he had resigned from the Election Commission, as he could not countenance being part of an unconstitutional fraud.  

In Justice Qazi Faez Isa’s case, he stood up to defend his principles against the deep state when he took to task its overindulgent head found supporting the bigots in the Dharna against the then elected government to pave way for a selected prime minister. Where do we go from here is a very wide question. The ‘great’ judgement in his reference has neither been here, nor there—it seems to be a swan song for hopes of an independent judiciary.

In a well-researched insight ‘Unlocking Justice Isa’s verdict’ in Naya Daur’s Newsdesk’s contributors Ailia Zehra, Ali Warsi and Ziyad Faisal have definitely made a great deal of effort to find glimpses of silver linings in Supreme Court of Pakistan’s verdict in Justice Isa’s reference declaring reference as well as the proceedings against him in the Supreme Judicial Council (SJC) as invalid. The ten wise men vindicated him, dropping short of giving him a clean chit over the allegations that he was guilty of misconduct for concealing the information about his families’ properties in the UK. Indeed, the order, therefore, seems to have opened up a Pandora’s box of legalities. Instead of taking their findings to the logical end, they left it half way passing the buck to the FBR—a revenue collection wing of the government with no virtuous reputation in honesty or above board findings. Indeed, ‘Deferring of case to FBR undermines judicial independence’. Lawyers’ community and the civil society have rightly expressed concerns over the SC’s decision to defer the case to the FBR which as we all very well know is an organisation licking the boots of the executive.

The judgement definitely has opened Pandora ’s box. Probably it would serve as a nemesis for Dr Faroogh Nasim’s legal career and that too of the ‘ten wise men’ who have outplayed the dirty role of the four Punjabi judges in Bhutto sahib’s illegal execution. If not now a little later, they all shall be held accountable either at the bar of public opinion or in the final court above the Lord who no general can pressurise or bribe. 

(The author is the former High Commissioner of Pakistan to the UK, a long time adviser to the martyred Prime Minister of Pakistan Mohtarma Benazir Bhutto and a veteran journalist.)