Justice Isa’s case –
a judicial imbroglio

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By Wajid Shamsul Hasan

Pakistan’s superior judiciary continues its roller coaster existence under the umbrella of a judicial cabal that neither has a spine nor character to rise above challenges. The way it has treated one of the most honest and respectable judges— Justice Faez Isa—a scion of one of the founders of Pakistan Barrister Qazi Mohammad Isa whose contribution in the Pakistan movement is second to none of the top leaders. Indeed, Pakistani judiciary was never threatened as much as it is now in its chequered history. It is regretfully noted that some of the key players in dispensing justice are neither worthy of the honour nor the robe. The impact of its overall stature on the judicial fraternity and members of the bar are deplorable. How low it could get when we see members of bars behave like hooligans and try to pull the trousers off from the erring judge in Punjab. Not only that, discipline and dignified conduct among the lawyers stands bankrupted. 

There is no doubt that the worst thing that happened to the judiciary after Justice Muhammad Munir’s reign of subverting the constitution was succession to the office of the CJP of Justice Saqib Nisar’s elevation who introduced most questionable contraption of suo motoism that ended with his retirement. He had shrouded superior judiciary in his brand of cloak-and-dagger justice resorted to by him to make superior judiciary dance to the tunes played by the four-star band masters. However, there were few judges that could be counted on fingertips who resisted extra-constitutional pressures inflicted on them through the machinations of CJP. Such upright judges exposed the blatant interference in Pakistan’s politics by the intelligence agencies and as such did not succumb to arm twisting. 

Thanks to late retired Air Marshal Asghar Khan who dared to demolish the cast iron doors of the Supreme Court to expose the involvement of the top generals and men heading Pakistan’s exclusive intelligence apparatus that spent money as if it was going out of fashion to stem the landslide electoral successes of PPP leader Benazir Bhutto. It was Bibi who was opposed to the establishment of a pliant government amenable to Establishment’s diktats. Notwithstanding his shortcomings, Justice ® Iftikhar Choudhry can be given credit for deciding Asghar Khan’s constitutional petition seeking punishment for those high ups involved in anti-democratic conspiracies to fail Bibi’s elected government. The historic judgement remains unimplemented collecting dust in the morgue of the Supreme Court. FIA that was ordered to enforce it expressed its inability to do so and advised the Supreme Court to close the case file. Indeed, there could not be a more glaring instance of legal fraud than this.

Justice Faez Isa

It was another thing that the then CJP Asif Saeed Khosa who having dealt with hostile forces seeking closure of such controversial cases put his foot down and did not allow the closure of Asghar Khan’s case. It would, indeed, be a landmark day when those found guilty of committing acts of treason for violating the Constitution are hanged as provided in the Article 6 of the constitution rather than let them go scot-free to play with the destiny of the people. In the post CJP Saqib Nisar’s tenure upright judges like Qazi Faez Isa and Justice Mansoor Ali Shah to name a few, went out of the way to put at the stake their honour to uphold supremacy of judiciary, rule of law and sovereignty of the Parliament. 

There is no doubt that the upright stand of Justice Faez Isa has singled him out as a defiant judge holding aloft the veracity of the judiciary. Justice Qazi Faez Isa has, indeed, emerged as the major defiant force as a thorn in the back of the powers that be exposing himself to the wrath of the Establishment that has let lose its non-state actors in the legal community to malign Justice Isa for exposing the illicit, anti-democratic and extra-constitutional machinations of the intelligence apparatus.

There are no two views that the tragedy of the Pakistan’s powerful praetorian Establishment is that it is outrageously selfish and megalomaniac in character. Time and again it has come out in its true colours by blatantly engineering machinations to impose its puppets as rulers to play pawns in their hands. They put to shred national interests and exploit the country as a personal fiefdom to feed the garrison.  It does not treat patriotism with equanimity, renders it secondary interest to serve as prophylactic. It monopolises patriotism and it has a new interpretation of it as per its needs. In matters of governance, in political engineering and cloning to produce politicians of khaki brand or puppet for its chains– has brought Pakistan to such a tragic past that we don’t know where we are headed.

From the days of Quaid’s death and assassination of Prime Minister Liaquat Ali Khan, the Praetorian Establishment aided by the civil bureaucracy, mullas and the feudals opposed democracy and Parliamentary system that was chosen by the founding fathers meant for establishing a secular and egalitarian society guaranteeing equality to all its citizens irrespective of caste, creed, colour or gender with no involvement of religion in the business of the state shutting doors permanently on those retrogressive elements who had opposed Quaid-e-Azam and Muslim League in their struggle for Pakistan. Regretfully the West Pakistani Power troika predominantly Punjabi took upon themselves with religious zeal, to subvert strengthening of sound progressive and democratic edifice to raise the populist scheme of Pakistan’s management based on the definition ‘we, the people,’ for a government of the people, by the people and for the people.  

It is indeed an irony that a country founded by one of the greatest legal brains of his time and through vote sure to be a democracy was subverted by the West Pakistani Punjabi dominated power troika with most regretfully Pakistan’s superior judiciary upholding its arbitrary decisions in violation of the rule of law, supremacy of law and sovereignty. Had there been an East Pakistani/Bengali Chief Justice of the Supreme Court and not Justice Muhammad Munir, there would not have been any doctrine of necessity or condoning of the actions of paralytic Governor General Sheikh Ghulam Muhammad—a bureaucrat from Punjab. 

Indeed, Justice Munir sounded the death-knell for Pakistan’s democracy. There was no turning back from here, none of Justice Munir’s successors- except very few like Justice M.R . Kayani- stood up to defend the constitution nor did they have the courage to oppose dictatorship. During General Zia and General Musharraf’s two decade long illegal tenures, the superior judiciary was used as a handmaid by the dictators to uphold their dirty machinations. Supreme Court judges became easily pliable with the exception of very few like late Justice Samdhani who dared not to carry out the diktat of General ZIA and gave Prime Minister Zulfikar Bhutto bail on merit in Nawab Mohammad Ahmad Khan murder case. It was Acting Chief Justice of Lahore High Court Maulvi Mushtaq who played most foul with Bhutto sahib, carried out Zia’s desire by sentencing him to death. 

In this dark period there were some silver linings that would be remembered in letters of gold for their defiance of General Zia. They were Chief Justice Yaqoob who gave a judgement on merit in Begum Nusrat Bhutto’s constitutional petition against coup, Justice Safdar Shah, Justice, Justice Dorab Patel and Justice Muhammad Haleem- all three from smaller provinces who acquitted Bhutto sahib while four judges from Punjab including Chief Justice Anwarul Haq upheld the death sentence. Former US Attorney General Ramsey Clerk and several other top international jurists’ dismissed Bhutto Sahib’s conviction as ‘judicial murder’— an albatross that continues to shame our highest judiciary as tainted. Then of course we cannot forget Justice Fakhruddin G. Ebrahim was among the few who refused to take oath on the dictator’s provisional constitutional order. 

Pakistan’s history is a catalogue of crimes and follies of the power troika. We have been witness to how the judiciary was forced to play second fiddle to the wishes of the Praetorian Establishment. Former Chief Justice Saqib Nisar left such an indelible imprint scarring the image of Pakistan’s higher judiciary. While that being ignoble precedence. This digression became necessary to expose the dirty role of the black sheep in black coats in the Punjab Bar who are now acting as puppets on the chains of master puppeteers to malign perhaps last of upright, bold, courageous and honest superior judge of Pakistan Mr Justice Qazi Faez Isa.

In Bhutto Sahib’s case when three judges from smaller provinces stood up to expose General Zia’s conspiracy to eliminate Pakistan’s most popular elected leader as opposed to four from Punjab including Chief Justice Anwarul Haq who became part of conspiracy by upholding his conviction under pressure from Zia. It was definitely shown courage by the Sindh Bar Council, Sindh High Court Bar Association, Karachi Bar Association, Malir Bar Association and Balochistan Bar that have strongly condemned the anti-Justice Faez Isa resolution [dated 20.4.2019] passed by the Executive Committee of the Punjab Bar Council. “We must express our severe disappointment with the six members of the PbBC who were elected to be the voice of the legal fraternity but have chosen, instead, to become puppets of the puppet master.” The condemnation further says: “Indeed, the resolution passed by the PbBC Executive Committee actually strengthens the perception that there are unknown forces seeking to influence and pressurise the judiciary and it strengthens the resolve and commitment of all genuine representatives of the legal fraternity to counter and resist all such moves.”

“Most unfortunate of all, however, is the PbBC Executive Committee’s accusation that Justice Qazi Faiz Isa has strengthened the narrative of RAW and India by criticising the role of intelligence agencies in the Faizabad dharna judgment and its demand that he be removed as judge of the Supreme Court.” This Raw accusation is part of standard procedure used by the spooks to eliminate any one who threatens its extra-constitutional jurisdiction. This is much like General ® Asad Durrani’s case with an intelligence apparatus belittling a national hero. Gen Durrani’s judicial imbroglio has become so offensive that a judge of the Islamabad High Court withdrew himself from hearing his petition for the removal of his name from the ominous exit control list.   

While one agrees with the views of the Sindh Bar resolution that, “Justice Qazi Faiz Isa enjoys an unblemished reputation for competence, integrity and independence and his only flaw seems to be his readiness to speak the truth and unwillingness to take instructions in the performance of his official functions, whether it be the Quetta Carnage Commission Report or the Faizabad dharna judgment.” Having known Justice Qazi Faez Isa’s antecedents, I share the popular view that he is an exception among the judges. Presidential reference against him has been rejected as baseless and biased and yet the Chief Justice of Pakistan has prohibited him from hearing any petition against Prime Minister Imran as he is the apple of Establishment’s eye. This is nothing but protecting the prime minister from his acts of omission and commission by a judiciary that remains on the same page. It means no justice would be forthcoming wherever the Prime Minister is a culprit such as his case of foreign funding. 

Lastly, a word or two about Faez Isa’s father Barrister Qazi Mohammad Isa, one of the founding fathers of Pakistan, youngest and highly valued member of the Working Committee of All-India Muslim League appointed on merit by the Quaid, his role was decisive to get Balochistan join the federation at the time of partition. I remember him coming in his Buick convertible to our house in Delhi when I was child to meet my father. Despite being of bluest patriotic blood, Barrister Qazi Faez Isa never used his historic clout to climb the ladder of fame, pelf and power and be something without deserving it.  Unlike Justice ® Saqib Nisar, he always treated discretion as a better part of valour and wisdom by refraining himself from ‘making headline-grabbing observations and his judgments read as if every word in them had been measured twice.’ It would be yet another lethal blow to Pakistan’s judiciary if the Punjab-based conspiracy against Justice Isa is allowed to succeed to fulfil the desires of the establishment.

(Author is former High Commissioner of Pakistan to UK and a veteran journalist.)