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Usama Khawar
September 17, 2023
Justice Qazi Faez Isa, poised to assume the role of Pakistan’s 29th chief justice today, has courted both admiration and controversy throughout his illustrious legal career. From his early life to his ascent to the highest echelons of Pakistan’s judiciary, his journey has been marked by significant events and decisions that have left an indelible mark on the country’s legal landscape.
Educated at prestigious institutions such as the Karachi Grammar School and the Court School of Law (now City Law School), London, Justice Isa’s academic journey laid the foundation for his future legal career.
On returning to Pakistan, he entered the legal profession, eventually becoming a partner at RIAA, one of the nation’s top-earning law firms. Justice Ayesha Malik, the first female Supreme Court justice, was also a partner at RIAA.
This corporate legal practice, primarily based in Karachi, was lucrative but differed significantly from the litigation-focused careers of many other judges.
In 2009, Justice Isa was appointed chief justice of the Balochistan High Court (BHC). The appointment came in the wake of the Supreme Court decision, declaring the actions of Gen Pervez Musharraf on Nov 3, 2007, unconstitutional and illegal.
What made this move particularly remarkable is Justice Isa’s limited prior connection to Balochistan. His upbringing, schooling, and legal practice were primarily centred in Karachi and abroad, making his direct elevation to a province’s chief justice office quite unconventional.
During his tenure in Balochistan, Justice Isa dealt with numerous cases that allowed him to further develop his judicial philosophy. This experience prepared him for his subsequent elevation to the SC in September 2014, where he would continue to make significant contributions to jurisprudence in Pakistan.
Memogate Commission: As head of the Memogate Commission, Justice Isa investigated the scandal that emerged in 2011 when Mansoor Ijaz revealed a secret memo allegedly authored by Hussain Haqqani, the then-US ambassador. The memo sought US intervention to prevent a potential military coup against the civilian government. Justice Isa’s commission submitted a report, accusing Haqqani of treason and disloyalty, a move seen by many as an attempt to undermine the elected government’s authority.
Commission on the assassination attempt on Justice Khawaja Sharif: Justice Isa led the inquiry commission on the assassination attempt on Justice Khawaja Sharif, investigating a plot against the chief justice of the Lahore High Court (LHC) in 2010. The commission found that the plot was fabricated by individuals, including Dr Tauqir Shah, who later served as the principal secretary to Prime Minister Imran Khan. Justice Isa’s strong condemnation of Dr Shah as an “incorrigible liar” and a “man of little character and credibility” remains noteworthy. This history raises concerns about governance, integrity, and potential conflicts of interest as Justice Isa prepares to don the cloak of the Chief Justice of Pakistan (CJP).
Quetta Bombing Commission: Justice Isa investigated the tragic events of August 2016 when a suicide bomber targeted lawyers in Quetta. His report candidly pointed out the security establishment’s failures and government agencies’ negligence in combating terrorism. Justice Isa emphasised the importance of enforcing existing laws to ensure justice and security for all Pakistanis.
Audio Leaks Commission: Justice Isa’s leadership of the Audio Leaks Commission has been contentious. Formed by the PDM-led government, the commission aimed to investigate audio recordings allegedly involving judicial figures. While some expected Justice Isa to exercise caution, he embraced the role.
The commission’s proceedings faced legal challenges, including a constitutional petition. Justice Isa continued the proceedings despite the suspension, highlighting issues with the commission’s formation and its impact on CJP Bandial.
He has left an indelible mark on Pakistan’s judiciary through his landmark judgments, displaying remarkable courage in the face of significant consequences. While he has authored numerous judgments, we will focus on four key cases that underscore his unwavering commitment to justice and constitutional principles:
Balochistan suo motu on Hazara killings: One of the most striking moments in Justice Isa’s career was his suo motu notice on the gruesome killings of 26 Hazara community members by the banned terrorist group Lashkar-i-Jhangvi. This landmark case not only demonstrated his commitment to justice but also outlined essential principles for suo motu proceedings. Justice Isa emphasised that citizens shouldn’t have to file applications when fundamental rights are violated or when they fear retaliation. He argued that high court chief justices could initiate such actions, even based on media reports.
Suo motu on killings of nationalists: Shortly after becoming the chief justice of Balochistan, Justice Isa issued a groundbreaking suo motu order in 2009, following the killings of three Baloch nationalist leaders. The killings triggered significant unrest and violence in the region. Remarkably, Justice Isa’s order went beyond conventional expectations as he directed the Inter-Services Intelligence (ISI) and Military Intelligence (MI) to fully cooperate with the police in their investigation of the murders. This bold move was prompted by complaints from a police officer about the intelligence agencies’ lack of cooperation with the probe, setting a precedent for accountability and transparency.
Faizabad Dharna suo motu judgment: Justice Isa’s most courageous and consequential verdict arose from the Faizabad dharna, a violent protest by Tehreek-i-Labbaik Pakistan (TLP) in 2017. Recognising the significance of the crisis, he initiated suo motu proceedings to investigate various state functionaries’ roles during the protest. In this groundbreaking judgment, Justice Isa made several significant findings:
Amid Pakistan’s turbulent political landscape, Justice Isa’s judgment in the Hudaibiya Paper Mills case was widely acclaimed to be both legally sound and bold. The case revolved around the National Accountability Bureau (NAB)’s delay in challenging an LHC judgment.
Justice Isa noted that the NAB’s petition should have been filed within the 60-day limitation period, but was instead sought after a delay of 1,229 days. He emphasised the importance of fundamental rights, like a fair trial and due process, and refused to condone the delay. This decision reaffirmed the principle that individuals cannot indefinitely await a prosecuting agency’s discretion, which could turn prosecution into persecution.
These landmark cases collectively showcase Justice Faez Isa’s commitment to justice, constitutional supremacy, and the rule of law. They also highlight the personal and professional challenges he faced as a result of his principled stands, including a presidential reference, persecution, and internal judicial divisions.
Justice Isa challenged the reference, leading to its dismissal by the SC as unconstitutional and based on false information. However, the matter was referred to the Federal Board of Revenue (FBR), leaving uncertainties.
A pivotal moment came on April 26, 2021, when the SC issued a historic review judgment, accepting petitions against its previous decision on the first reference. This courageous stand in favour of constitutional supremacy and the rule of law was hailed as a victory for judicial independence, despite facing opposition from influential groups.
During the review process, Justice Isa and his wife personally defended their cases, facing scrutiny and occasional harassment. Despite these challenges, their pursuit of justice garnered support from legal experts, civil society, and human rights advocates.
In essence, the presidential reference and the subsequent review judgment emphasise the need to balance judicial accountability with safeguarding judicial independence. Transparent, fair mechanisms for holding judges accountable are vital to ensure Pakistan’s judiciary remains strong and impartial.
1. Democracy and constitutionalism
Civilian supremacy and constitutional integrity
Justice Isa is perceived as a strong advocate for civilian supremacy in Pakistan and upholding the role of the armed forces within the constitutional framework. He firmly believes in the sovereignty of civilian institutions.
Example 1: Opposition to military interference
Justice Isa took a principled stand against military involvement in politics during the proclamation of emergency by Musharraf in 2007. He refused to appear as an advocate before judges who violated their oath to preserve and protect the Constitution.
Example 2: Opposition to trial of civilians by military court
In his dissenting opinion in the military courts judgment (District Bar Association Rawalpindi vs Federation of Pakistan (PLD 2015 SC 173)], Justice Isa held the constitutional amendment to give cover to the trial of civilians in military court to be against the fundamental feature of the Constitution. He stressed the importance of a separation of powers and the independence of the judiciary. He also believed that the military courts were not effective in combating terrorism, and that there were better civilian alternative institution and laws available — enforcement of Anti-Terrorism Act, 1997.
However, in a more recent petition against the trials of May 9 civilians, Justice Isa recused himself from the bench, citing his decision to not sit on benches formed by the chief justice until the petition against the Supreme Court (Practice and Procedure) Act, 2023 was decided. Once the fate of the law is decided, it’s expected that his stance involving PTI workers will be consistent with his earlier stance against the trial of terror suspects in military courts.
Example 3: Challenging the Faizabad agreement
Justice Isa challenged the legality and morality of the 2017 Faizabad agreement between the government and the TLP, which was brokered by the Director-General of ISI. His stance emphasised the need to prevent undue interference by intelligence agencies in civilian affairs, preserving the democratic process.
Example 4: Addressing parliament on the 50th anniversary of the Constitution
On the 50th anniversary of the Constitution, Justice Isa accepted the invitation to address the parliament. At a time of political tension between the federal government and the CJP, he chose to appear in parliament, despite facing accusations of bias. His presence, while controversial at the time, signified support for the democratic process.
Example 5: Fair distribution of land and financial responsibility
Justice Isa advocates for civilian supremacy and a limited role for the armed forces, strictly confined to their constitutional duties.
He raised concerns about the distribution of land to judges and members of the armed forces, highlighting that this practice is not governed by law and constitutes discrimination. He pointed out that public land should not be granted unfairly to one group while disregarding civilians in the service of Pakistan. Additionally, he highlighted the financial burden of pension payments and debt servicing, calling for a fair and transparent distribution of resources.
Stance on missing persons and human rights
Justice Isa has been a strong advocate for missing persons in Balochistan, particularly cases of enforced disappearances and extrajudicial killings. During his tenure as chief justice of the BHC, he took proactive steps to address this issue.
He initiated suo motu cases in numerous instances involving missing persons, issuing notices to state functionaries to investigate and resolve the cases. His commitment was evident as he sought to ensure the safe return of missing individuals or their immediate release.
An early example of his involvement was a suo motu action in response to the killings of three Baloch nationalist leaders in April 2009. This included directing intelligence agencies, such as the MI and ISI, to cooperate with the police in investigating these murders, holding them accountable.
During his tenure, a significant number of missing persons were reportedly released by security agencies, reflecting his dedicated efforts. He also designated a specific day in the BHC to address missing persons’ cases and continued to take suo motu actions in cases involving the abductions of lawyers, emphasising his commitment to resolving this pressing issue.
2. Progressive Islamism and its role in jurisprudence
Justice Isa’s jurisprudence is perceived to be rooted in a progressive interpretation of Islam. He consistently draws upon Islamic jurisprudence, references Islamic texts, and cites the ‘Objective Resolution’ (Article 2A of the Constitution) to underpin his judicial arguments. His interpretation of Islam aligns with the belief that it can be a powerful tool for establishing a just and pluralistic society.
Women’s rights and Islamic references
One prominent aspect of Justice Isa’s Islamic perspective is his advocacy for women’s rights within an Islamic framework. He frequently references Islamic principles to advance the cause of gender equality and his judgments often contain Islamic references to advocate for women’s property rights, inheritance, and girls’ access to education.
For instance, he emphasised women’s inheritance rights, stating, “Islam recognises the right of inheritance of women,” and used Islamic law to challenge those who seek to deprive women of their rightful shares.
Environmental protection rooted in Islam
Justice Isa’s commitment to environmental protection is also rooted in his interpretation of Islam. He invokes Islamic teachings on the balance of nature and humanity’s role as stewards of the Earth. In the Houbara Bustard Hunting Case, he ruled that it is the divine duty of the people of Pakistan to protect endangered species, referencing Islamic principles against cruelty to animals and linking them to constitutional rights.
3. Curbing religious extremism and promoting tolerance
There are also many other examples of Justice Isa’s commitment to curbing religious extremism and promoting tolerance:
Countering religious extremism with Islamic teachings
In various cases, such as the Faizabad Dharna Case, the Hazara Killings Suo Motu Case, and Quetta Commission Report, Justice Isa invokes Islamic teachings to denounce extremist ideologies and violence. In the Faizabad Dharna case, for example, he lamented the divergence between the actions of some who claim to love Prophet Muhammad (PBUH) and the virtuous life he led, stating, “violating the law, occupying public roads, restricting the movement of people, destroying property, and causing death and injury is unbecoming of bearers of the Muslim faith.”
Protection of religious minorities through Islamic principles
After the Jaranwala incident, where a Christian neighbourhood was attacked by mobs, he issued a statement referencing Quranic injunctions to condemn the attackers, quoted verses from the Holy Quran and said that Muslims were told to fight against those who harmed churches.
He highlighted that faith in Prophet Isa was one of the principles of Islam and recalled events from history where Muslim religious leaders had shown respect to Christianity.
Tackling hate speech
In 2017, Justice Isa issued orders to curb hate speech propagated by banned sectarian and religious organisations under the guise of Islam. He specifically stressed the need to counter hate speech that promotes violence and intolerance.
4. Rule of law and accountability
Throughout his career, Justice Isa has been a staunch proponent of the rule of law and accountability, particularly when it comes to the misuse of state resources, corruption, and environmental degradation.
He introduced the concept of “prebendalism,” which describes the practice of benefiting those in official positions at the expense of the state and the public. He criticised the distribution of land among civilian and military bureaucrats and judges, emphasising the importance of preserving land for public utilities and services. He argued that this practice harms impoverished citizens and undermines justice and Islamic values.
5. Promoting freedom of information and media
Advocating for an independent and responsible media
Throughout his career, Justice Isa has stressed need for an independent and responsible media in a thriving democracy. On many an occasion, he contended that a media free from external pressures is essential for informing and educating the public, serving as a check on power, and safeguarding citizens’ interests. He has also been vocal against instances where state authorities have censored or harassed journalists. He argues that such actions run counter to democratic principles and hamper transparency.
Standing with journalists
Justice Isa has shown solidarity with journalists who have faced abduction or harassment due to their work. Notably, he visited Matiullah Jan, a journalist who was abducted, to express his support. This gesture highlights his commitment to protecting journalists’ rights and recognising their vital role in society.
Transparency in the judiciary
Justice Isa’s commitment to transparency extends to the realm of the judiciary itself. He firmly believes that judges should not be shielded from criticism and scrutiny, aligning with his broader philosophy of open justice and accountability.
Advocating for open trials
Justice Isa has taken proactive steps to ensure transparency within the legal process. For instance, he filed an application for a public trial of the presidential reference against him. This action demonstrates his belief in open justice and his commitment to addressing allegations transparently and without fear.
The CJP-designate has consistently raised concern regarding the application and exercise of Article 184(3) of the Constitution, which grants the SC the authority to take suo motu notice of matters of public importance relating to fundamental rights. His views are evident in significant cases and key arguments:
Infectious wastes in KP case: In a suo motu case concerning the improper disposal of hospital waste in Khyber Pakhtunkhwa, Justice Isa criticised the invocation of Article 184(3) without satisfying the prerequisites of a matter of public importance and violation of fundamental rights. He objected to the director of the Human Rights Cell exercising these powers, emphasising that only the SC can wield suo motu powers, and the chief justice’s approval cannot replace an SC order.
Hafiz-e-Quran marks case: Justice Isa presided over a bench addressing the allocation of additional marks to Hafiz-e-Quran candidates applying for MBBS/BDS degrees. He underscored that neither the Constitution nor the rules empower the chief justice to create special benches or select judges for them. He also questioned the absence of a defined procedure for suo motu cases under Article 184(3) and highlighted the lack of a right to appeal in such cases. His order suggested that seniority should guide judicial appointments until comprehensive rules were established.
Journalists’ harassment case: Justice Isa’s objections to the formation of a larger bench in the journalists’ harassment case raised questions about the chief justice’s sole authority to initiate suo motu actions. This case exposed constitutional and procedural concerns.
Supreme Court (Practice and Procedure) Bill 2023 Case: A constitutional petition challenged a bill aimed at regulating the CJP’s powers to form benches and fix cases under Article 184(3). Justice Isa expressed concerns about the Act’s potential impact on the CJP’s powers and the distribution of authority among judges. He advocated for resolving this matter before addressing other cases.
2. Intra-court disagreements and implications
Justice Isa’s perspectives on Article 184(3) and suo motu jurisdiction have sparked disagreements within the SC. These disputes have significant implications for the court’s functioning and approach to constitutional jurisdiction, highlighting the pressing need for clarity in Article 184(3) and the roles of judges.
These internal disagreements reflect varying interpretations of Article 184(3) between Justice Isa and his colleagues, influencing court decisions and prompting questions about its overall approach to constitutional jurisdiction. This emphasises the need for reform in Supreme Court Rules in areas such as bench formation, case fixation, suo motu initiation, and appeals. They also illuminate the court’s challenge in balancing its roles as a rights guardian, public interest protector, constitutional arbiter, and judicial independence defender.
Imran Khan’s development funds case: In February 2021, during an unrelated case, Justice Isa initiated suo motu proceedings questioning the constitutionality of former prime minister Imran Khan’s announcement of creating development funds for lawmakers. This move raised concerns as it seemed to infringe on the traditional prerogative of the chief justice to invoke a suo motu case. Justice Isa neither sought nor received the CJP’s approval, choosing to exercise this power himself. This action appeared irregular and out of line with established practices.
Journalists’ harassment case: In August, Justice Isa received an application from journalists alleging harassment by government agencies. He entertained the application directly in his court, deviating from the usual practice of filing such applications in designated offices. Justice Isa issued notices to government authorities and set the hearing date before his bench, a procedure typically reserved for the CJP. This deviation from established procedures led to his exclusion from a larger bench formed to address the case.
Hafiz-e-Quran Marks Case: Justice Isa suspended all suo motu proceedings before the SC and temporarily curtailed the CJP’s authority to fix such cases. While hearing a case related to granting additional marks to Hafiz-e-Quran candidates, he decided to take suo motu notice about the CJP’s power to form special benches and fix suo motu cases. This move suspended all suo motu cases until the Supreme Court Rules governing the CJP’s powers were amended, challenging established norms.
BHC chief justice vs SC justice
Contrary to his later move, while he observed the role of Balochistan chief justice, Justice Isa upheld the chief justice’s exclusive authority to initiate suo moto actions. Perhaps his stance would carry more weight if there was evidence of substantial reforms during his tenure as chief justice of Balochistan.
Random vehicle inspection on Constitution Avenue: Justice Isa confronted individuals in a vehicle parked on Constitution Avenue, Islamabad, suspecting their involvement in criminal activity. This incident raised concerns about his extrajudicial actions and interactions.
Confrontation over traffic blockage: He publicly criticised police officers in Islamabad for blocking traffic to accommodate President Dr Arif Alvi’s protocol, disrupting commuters without a compelling reason. This incident showcased his direct involvement in public matters outside the courtroom.
Altercation with a street vendor: Justice Isa confronted a street vendor on Constitution Avenue for committing illegal activities and obstructing the street. He demanded to see the vendor’s licence and permit and instructed him to vacate the area. This incident demonstrated his willingness to intervene in street-level matters.
While these actions may reflect a commitment to law and order, they also raise questions about the role of a judge and the potential for undermining established authorities. Such behaviour can invite criticism and challenges to judicial credibility in a charged political environment.
While we have discussed the concentration of suo motu power in the chief justice’s office above, it remains a focal point of contention in Justice Qazi Faez Isa’s drive for judicial reform. The unrestrained powers vested in the chief justice, particularly under Article 184(3) to invoke suo motu jurisdiction, raise concerns about checks and balances within the judicial system.
Justice Isa consistently calls for the regulation of this power to ensure transparency and accountability. His advocacy emphasises the need to establish clear guidelines and procedures for invoking suo motu jurisdiction, preventing its potential abuse.
Bench formation disparity
‘Mastering the Roster’, a statistical study, highlights a significant disparity in the allocation of important political cases among judges. This analysis underscores the imbalance in case assignment, with select judges handling a substantial number of significant cases. This concentration of power raises concerns about the potential for the judiciary to be influenced by personal interests, undermining the principle of an equal and impartial judiciary.
Justice Isa advocates for reforming the process of bench formation to address these disparities. His proposals call for restructuring bench allocation to ensure a democratic and transparent system. He emphasises the need for established rules and guidelines to govern the allocation of cases among judges.
One crucial aspect of Justice Isa’s stance is his demand for structured criteria that determine the composition of benches. This would reduce doubts about the motivation behind bench selection, minimise favouritism, and promote fairness and impartiality within the judiciary.
Appointments of judges through the JCP
The introduction of the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee aimed to make the judge appointment process more democratic and transparent.
Justice Isa proposed revisions to appointment rules to curb the unchecked powers of the CJP in the process. Justice Isa advocates for a structured appointment system that prioritises merit over personal preferences or political considerations.
His advocacy extends to restricting the CJP’s powers in the appointment process, ensuring that appointments are made with impartiality and adherence to established criteria.
Justice Isa’s most contentious opposition was to Justice Ayesha Malik’s appointment to the SC. This dispute exposed the intricacies of judicial appointments in Pakistan.
Justice Malik, a former partner in Justice Isa’s law firm, RIAA, raised concerns about potential conflicts of interest. Despite their prior association, Justice Isa opposed her appointment, emphasising his commitment to impartiality.
Justice Malik’s nomination was significant as it could have made her the first female justice in the SC. Supporters applauded this potential milestone, while Justice Isa insisted on a merit-based and transparent selection process, irrespective of gender.
Additionally, Justice Isa emphasises the need for clear and detailed criteria for merit-based appointments.
Elections and caretaker setup
Chief among these challenges is the controversy around the delay in general elections and the scope of powers vested in the caretaker government. Chief Justice Isa’s role in ensuring the democratic process and upholding the rule of law will be paramount, especially in light of the recent dissolution of the National Assembly, leading to legal disputes over the authority to announce election dates.
Military court cases
Justice Isa’s past dissent against granting military courts constitutional cover underscores his unwavering commitment to judicial principles. However, the unresolved matters surrounding military court cases will put his dedication to justice to the test.
Supreme Court Practice and Procedure Act 2023
The implications of the Supreme Court Practice and Procedure Act 2023 is another challenge for Justice Isa. Ensuring that this act aligns with principles of justice and transparency is a crucial task, as its provisions impact the court’s procedures, efficiency, and access to justice. His decisions in this regard will have far-reaching consequences for the judiciary’s functioning in the years to come.
Pending reference against Justice Naqvi
Chief Justice Isa faces the significant challenge of addressing the unresolved reference against Justice Mazhar Ali Naqvi. This case exemplifies the delicate balancing act he must perform — holding fellow justices accountable while avoiding any perception of bias or witch hunts. It highlights the importance of transparent and fair processes for handling such references while safeguarding the judiciary’s integrity.
Restoring judicial independence and credibility
Justice Isa’s judgments on judicial appointments, military court trials, and superior judiciary accountability give an insight into his perspective: He aims to strike a balance between judicial independence and accountability, and the judiciary’s role as the guardian of the Constitution is central to his vision.
Internal accountability and the SJC
The Supreme Judicial Council (SJC) plays a crucial role in internal judicial accountability. Chief Justice Isa’s views on enhancing transparency within the SJC while safeguarding judicial independence reflect his dedication to maintaining a delicate balance. His efforts to promote transparency in SJC proceedings underscore his commitment to accountability within the judiciary.
External challenges to judicial independence
External pressures on judicial independence, characterised by violations of court orders and pressures on the judiciary, pose significant challenges for the CJP. Justice Isa’s leadership in upholding the judiciary’s authority in the face of these challenges will be instrumental.
Undoing the Gulzar Doctrine: Confronting the ‘powerful’
Chief Justice Isa also faces an array of complex cases that challenge the interests of powerful entities such as the military courts’ conviction appeals, the Musharraf treason trial appeal, land acquisition by armed forces cases and the Ravi Riverfront Urban Development Project. These cases collectively represent a significant challenge to the previous practice of avoiding uncomfortable issues that challenge or threaten elite interests, and they will test Chief Justice Isa’s commitment to justice and the rule of law.
Addressing immediate issues
Chief Justice Isa faces immediate challenges related to provincial and general elections, the fate of military trials of civilians, and the controversy surrounding presidential assent to legislative amendments. His decisions on these pressing issues will have a profound impact on Pakistan’s political and legal landscape.
In navigating these challenges and pursuing his vision, Chief Justice Isa stands at the helm of Pakistan’s judiciary, poised to shape its future while upholding the principles of justice, accountability, and the rule of law.
Land reforms case
The Qazalbash Waqf Case is a landmark legal battle that bears profound significance for Pakistan’s socio-economic landscape and the judiciary’s role in shaping it. At its core, this case questions the Federal Shariat Court’s judgment that held that the land reforms initiated by Zulfikar Ali Bhutto in the 1970s were incompatible with Islamic principles and the Constitution. It challenges the judiciary to navigate a complex terrain where religion, politics, and social justice intersect.
This case is not merely a legal matter — it embodies the aspirations of millions of Pakistanis who have long sought equitable access to land and resources. It is a litmus test of Chief Justice Isa’s commitment to a progressive interpretation of Islam, a belief in upholding the Constitution, and a dedication to the will of the people as expressed in their supreme legal document. Justice Isa’s demonstrated interest in fostering a progressive vision of Islam, divorced from rigid orthodoxy, makes this a prime opportunity to leave an indelible mark on Pakistan’s legal landscape.
Furthermore, the case challenges the notion of handing over the reins of interpreting Islam solely to religious scholars or clerics. Instead, it underscores the judiciary’s pivotal role in reconciling religious principles with modern constitutional values. In this context, this case represents an ideal opportunity for CJP Isa to shape the direction of Islamic jurisprudence in Pakistan, emphasising its compatibility with a progressive and inclusive vision for the nation. It is a chance to reaffirm that the SC, as the guardian of the Constitution, will safeguard the rights and welfare of all Pakistanis, irrespective of their socio-economic status.
In essence, the case is a litmus test for the judiciary’s role in fostering a just and equitable society. It is a chance for Chief Justice Isa to demonstrate that he is a custodian of the people’s welfare, an upholder of the Constitution, and a proponent of a progressive, inclusive, and constitutionally grounded vision of Islam. The outcome of this case could reverberate throughout Pakistan’s history, reshaping its socio-economic landscape and reinforcing the judiciary’s pivotal role in ensuring justice and equity for all.
In the complex narrative of Pakistan’s judiciary, the spotlight often falls on individuals who dare to challenge the status quo, much like Justice Isa. As we have journeyed through his remarkable career, one thing has become undeniably clear: pinning our hopes solely on one individual, even someone as principled and dedicated as Justice Isa is both foolish and unreasonable.
Pakistan has witnessed the rise and fall of many self-proclaimed saviours, both in khakis and robes, and we have been taken for a ride on numerous occasions. Yet, despite the disillusionment, the people of this resilient nation continue to harbour a glimmer of hope. It is this eternal hope that keeps us searching for a messiah, someone who will usher in the reforms and justice that we so desperately need.
As Justice Isa ascends to the role of CJP, we must issue a cautious but sincere plea to him and those who follow in his footsteps. It is a position of immense power and responsibility, but it is also a fleeting one. We implore the chief justice not to be carried away by the allure of power, not to hoard authority, but rather, to use his tenure wisely.
Justice Isa’s crusade to bring the office of the CJP under the law and to structure its powers is a noble endeavour, one that could potentially stand as a greater achievement than any other in recent memory. However, it is not a task to be taken lightly. The pursuit of justice and reform should be focused, devoid of personal vendettas, and free from any lingering animosity. A divided court leads to a fragmented system, and in a nation as diverse and complex as Pakistan, unity among the judiciary is paramount.
As we observe the unfolding chapters of Pakistan’s judicial history, we must remember that change is a collective effort. While individuals like Justice Qazi Faez Isa play a pivotal role, true transformation requires a broader commitment from all stakeholders. The people of Pakistan remain hopeful, ever yearning for a brighter future, and it is our collective responsibility to ensure that the judiciary, under the leadership of the chief justice, serves as a beacon of justice, fairness, and accountability for all.
Hope springs eternal, and it is this hope that should guide us towards a better tomorrow.
Justice Qazi Faez Isa — Pakistan’s judicial maverick
Justice Isa’s tenure as a jurist has been marked by a commitment to upholding democratic values, progressive Islamism and the rule of law.Usama Khawar
September 17, 2023
Justice Qazi Faez Isa, poised to assume the role of Pakistan’s 29th chief justice today, has courted both admiration and controversy throughout his illustrious legal career. From his early life to his ascent to the highest echelons of Pakistan’s judiciary, his journey has been marked by significant events and decisions that have left an indelible mark on the country’s legal landscape.
Early life and legal foundation
Justice Isa’s background is steeped in privilege. Born into a Sunni family with a rich political legacy, his father played a prominent role in the All-India Muslim League and later served as Pakistan’s ambassador, while his mother was actively involved in various social organisations. However, his roots are also tied to the persecuted Hazara community, providing him a unique perspective into Pakistan’s complex socio-political fabric.Educated at prestigious institutions such as the Karachi Grammar School and the Court School of Law (now City Law School), London, Justice Isa’s academic journey laid the foundation for his future legal career.
On returning to Pakistan, he entered the legal profession, eventually becoming a partner at RIAA, one of the nation’s top-earning law firms. Justice Ayesha Malik, the first female Supreme Court justice, was also a partner at RIAA.
This corporate legal practice, primarily based in Karachi, was lucrative but differed significantly from the litigation-focused careers of many other judges.
In 2009, Justice Isa was appointed chief justice of the Balochistan High Court (BHC). The appointment came in the wake of the Supreme Court decision, declaring the actions of Gen Pervez Musharraf on Nov 3, 2007, unconstitutional and illegal.
What made this move particularly remarkable is Justice Isa’s limited prior connection to Balochistan. His upbringing, schooling, and legal practice were primarily centred in Karachi and abroad, making his direct elevation to a province’s chief justice office quite unconventional.
During his tenure in Balochistan, Justice Isa dealt with numerous cases that allowed him to further develop his judicial philosophy. This experience prepared him for his subsequent elevation to the SC in September 2014, where he would continue to make significant contributions to jurisprudence in Pakistan.
Controversial roles, courageous actions
Over the years, the chief justice-designate has garnered attention and controversy as an inquiry commissioner in various high-profile incidents.Memogate Commission: As head of the Memogate Commission, Justice Isa investigated the scandal that emerged in 2011 when Mansoor Ijaz revealed a secret memo allegedly authored by Hussain Haqqani, the then-US ambassador. The memo sought US intervention to prevent a potential military coup against the civilian government. Justice Isa’s commission submitted a report, accusing Haqqani of treason and disloyalty, a move seen by many as an attempt to undermine the elected government’s authority.
Commission on the assassination attempt on Justice Khawaja Sharif: Justice Isa led the inquiry commission on the assassination attempt on Justice Khawaja Sharif, investigating a plot against the chief justice of the Lahore High Court (LHC) in 2010. The commission found that the plot was fabricated by individuals, including Dr Tauqir Shah, who later served as the principal secretary to Prime Minister Imran Khan. Justice Isa’s strong condemnation of Dr Shah as an “incorrigible liar” and a “man of little character and credibility” remains noteworthy. This history raises concerns about governance, integrity, and potential conflicts of interest as Justice Isa prepares to don the cloak of the Chief Justice of Pakistan (CJP).
Quetta Bombing Commission: Justice Isa investigated the tragic events of August 2016 when a suicide bomber targeted lawyers in Quetta. His report candidly pointed out the security establishment’s failures and government agencies’ negligence in combating terrorism. Justice Isa emphasised the importance of enforcing existing laws to ensure justice and security for all Pakistanis.
Audio Leaks Commission: Justice Isa’s leadership of the Audio Leaks Commission has been contentious. Formed by the PDM-led government, the commission aimed to investigate audio recordings allegedly involving judicial figures. While some expected Justice Isa to exercise caution, he embraced the role.
The commission’s proceedings faced legal challenges, including a constitutional petition. Justice Isa continued the proceedings despite the suspension, highlighting issues with the commission’s formation and its impact on CJP Bandial.
Landmark judgments
Justice Isa is a prolific judge known for his meticulously researched, lengthy judgments that draw from a wide range of academic sources. Despite being assigned relatively fewer cases involving substantial legal and constitutional matters in recent years, he has produced a substantial body of work, although his talents have been underused by three chief justices. His judgments consistently address important issues, including preventing the misuse of state resources, protecting the environment, combating religious extremism, defending minority rights, advancing women’s inheritance rights, advocating for freedom of information, and upholding judicial independence.He has left an indelible mark on Pakistan’s judiciary through his landmark judgments, displaying remarkable courage in the face of significant consequences. While he has authored numerous judgments, we will focus on four key cases that underscore his unwavering commitment to justice and constitutional principles:
Balochistan suo motu on Hazara killings: One of the most striking moments in Justice Isa’s career was his suo motu notice on the gruesome killings of 26 Hazara community members by the banned terrorist group Lashkar-i-Jhangvi. This landmark case not only demonstrated his commitment to justice but also outlined essential principles for suo motu proceedings. Justice Isa emphasised that citizens shouldn’t have to file applications when fundamental rights are violated or when they fear retaliation. He argued that high court chief justices could initiate such actions, even based on media reports.
Suo motu on killings of nationalists: Shortly after becoming the chief justice of Balochistan, Justice Isa issued a groundbreaking suo motu order in 2009, following the killings of three Baloch nationalist leaders. The killings triggered significant unrest and violence in the region. Remarkably, Justice Isa’s order went beyond conventional expectations as he directed the Inter-Services Intelligence (ISI) and Military Intelligence (MI) to fully cooperate with the police in their investigation of the murders. This bold move was prompted by complaints from a police officer about the intelligence agencies’ lack of cooperation with the probe, setting a precedent for accountability and transparency.
Faizabad Dharna suo motu judgment: Justice Isa’s most courageous and consequential verdict arose from the Faizabad dharna, a violent protest by Tehreek-i-Labbaik Pakistan (TLP) in 2017. Recognising the significance of the crisis, he initiated suo motu proceedings to investigate various state functionaries’ roles during the protest. In this groundbreaking judgment, Justice Isa made several significant findings:
- Clarification of declaration: He clarified that the change in the declaration’s wording was a clerical error, dispelling misconceptions.
- Violation of fundamental rights: The protest violated citizens’ fundamental rights, including the right to life, dignity, and equality.
- Government’s failure: The government failed in its constitutional duty to protect citizens and maintain public order.
- Illegal agreement: The agreement brokered by armed forces ending the protest was deemed illegal and unconstitutional.
- Intelligence agencies’ and armed forces’ role: Justice Isa questioned the dubious role of state agencies, including the ISI, in failing to counter the threat of violent extremism posed by TLP and other unscrupulous actors. He noted his disappointment in the way ISI allegedly interferes in matters of political significance. He noted that military agencies should never be perceived to support a particular political party. The judgment pointed out the constitutional role of armed forces and noted that the honour and esteem of those who sacrifice their lives for the country should never be undermined by the illegal actions of a few.
- Media influence: Media and social media played a detrimental role by spreading false information and inciting violence.
- Confronting powerful actors: He fearlessly confronted political elites, the military establishment, and religious groups.
- Upholding constitutional supremacy: The judgment upheld constitutional supremacy and the rule of law.
- Raising public awareness: It educated citizens on critical issues affecting Pakistan’s stability and democratic values.
Amid Pakistan’s turbulent political landscape, Justice Isa’s judgment in the Hudaibiya Paper Mills case was widely acclaimed to be both legally sound and bold. The case revolved around the National Accountability Bureau (NAB)’s delay in challenging an LHC judgment.
Justice Isa noted that the NAB’s petition should have been filed within the 60-day limitation period, but was instead sought after a delay of 1,229 days. He emphasised the importance of fundamental rights, like a fair trial and due process, and refused to condone the delay. This decision reaffirmed the principle that individuals cannot indefinitely await a prosecuting agency’s discretion, which could turn prosecution into persecution.
These landmark cases collectively showcase Justice Faez Isa’s commitment to justice, constitutional supremacy, and the rule of law. They also highlight the personal and professional challenges he faced as a result of his principled stands, including a presidential reference, persecution, and internal judicial divisions.
Petition, presidential reference and the review judgment
In 2019, President Arif Alvi filed a reference against Justice Isa, alleging misconduct and non-disclosure of foreign assets, particularly his family’s properties in the UK. The reference was widely seen as an effort to silence him, especially after his significant role in the Faizabad sit-in case in 2019.Justice Isa challenged the reference, leading to its dismissal by the SC as unconstitutional and based on false information. However, the matter was referred to the Federal Board of Revenue (FBR), leaving uncertainties.
A pivotal moment came on April 26, 2021, when the SC issued a historic review judgment, accepting petitions against its previous decision on the first reference. This courageous stand in favour of constitutional supremacy and the rule of law was hailed as a victory for judicial independence, despite facing opposition from influential groups.
During the review process, Justice Isa and his wife personally defended their cases, facing scrutiny and occasional harassment. Despite these challenges, their pursuit of justice garnered support from legal experts, civil society, and human rights advocates.
In essence, the presidential reference and the subsequent review judgment emphasise the need to balance judicial accountability with safeguarding judicial independence. Transparent, fair mechanisms for holding judges accountable are vital to ensure Pakistan’s judiciary remains strong and impartial.
Balancing act
Justice Isa’s tenure as a jurist has been marked by a staunch commitment to upholding democratic values, progressive Islamism, and the rule of law. His judicial philosophy, while intricate, offers insights into his vision of a democratic, pluralistic, and welfare-oriented state, largely consistent with the ideals of Pakistan’s founder, Muhammad Ali Jinnah.1. Democracy and constitutionalism
Civilian supremacy and constitutional integrity
Justice Isa is perceived as a strong advocate for civilian supremacy in Pakistan and upholding the role of the armed forces within the constitutional framework. He firmly believes in the sovereignty of civilian institutions.
Example 1: Opposition to military interference
Justice Isa took a principled stand against military involvement in politics during the proclamation of emergency by Musharraf in 2007. He refused to appear as an advocate before judges who violated their oath to preserve and protect the Constitution.
Example 2: Opposition to trial of civilians by military court
In his dissenting opinion in the military courts judgment (District Bar Association Rawalpindi vs Federation of Pakistan (PLD 2015 SC 173)], Justice Isa held the constitutional amendment to give cover to the trial of civilians in military court to be against the fundamental feature of the Constitution. He stressed the importance of a separation of powers and the independence of the judiciary. He also believed that the military courts were not effective in combating terrorism, and that there were better civilian alternative institution and laws available — enforcement of Anti-Terrorism Act, 1997.
However, in a more recent petition against the trials of May 9 civilians, Justice Isa recused himself from the bench, citing his decision to not sit on benches formed by the chief justice until the petition against the Supreme Court (Practice and Procedure) Act, 2023 was decided. Once the fate of the law is decided, it’s expected that his stance involving PTI workers will be consistent with his earlier stance against the trial of terror suspects in military courts.
Example 3: Challenging the Faizabad agreement
Justice Isa challenged the legality and morality of the 2017 Faizabad agreement between the government and the TLP, which was brokered by the Director-General of ISI. His stance emphasised the need to prevent undue interference by intelligence agencies in civilian affairs, preserving the democratic process.
Example 4: Addressing parliament on the 50th anniversary of the Constitution
On the 50th anniversary of the Constitution, Justice Isa accepted the invitation to address the parliament. At a time of political tension between the federal government and the CJP, he chose to appear in parliament, despite facing accusations of bias. His presence, while controversial at the time, signified support for the democratic process.
Example 5: Fair distribution of land and financial responsibility
Justice Isa advocates for civilian supremacy and a limited role for the armed forces, strictly confined to their constitutional duties.
He raised concerns about the distribution of land to judges and members of the armed forces, highlighting that this practice is not governed by law and constitutes discrimination. He pointed out that public land should not be granted unfairly to one group while disregarding civilians in the service of Pakistan. Additionally, he highlighted the financial burden of pension payments and debt servicing, calling for a fair and transparent distribution of resources.
Stance on missing persons and human rights
Justice Isa has been a strong advocate for missing persons in Balochistan, particularly cases of enforced disappearances and extrajudicial killings. During his tenure as chief justice of the BHC, he took proactive steps to address this issue.
He initiated suo motu cases in numerous instances involving missing persons, issuing notices to state functionaries to investigate and resolve the cases. His commitment was evident as he sought to ensure the safe return of missing individuals or their immediate release.
An early example of his involvement was a suo motu action in response to the killings of three Baloch nationalist leaders in April 2009. This included directing intelligence agencies, such as the MI and ISI, to cooperate with the police in investigating these murders, holding them accountable.
During his tenure, a significant number of missing persons were reportedly released by security agencies, reflecting his dedicated efforts. He also designated a specific day in the BHC to address missing persons’ cases and continued to take suo motu actions in cases involving the abductions of lawyers, emphasising his commitment to resolving this pressing issue.
2. Progressive Islamism and its role in jurisprudence
Justice Isa’s jurisprudence is perceived to be rooted in a progressive interpretation of Islam. He consistently draws upon Islamic jurisprudence, references Islamic texts, and cites the ‘Objective Resolution’ (Article 2A of the Constitution) to underpin his judicial arguments. His interpretation of Islam aligns with the belief that it can be a powerful tool for establishing a just and pluralistic society.
Women’s rights and Islamic references
One prominent aspect of Justice Isa’s Islamic perspective is his advocacy for women’s rights within an Islamic framework. He frequently references Islamic principles to advance the cause of gender equality and his judgments often contain Islamic references to advocate for women’s property rights, inheritance, and girls’ access to education.
For instance, he emphasised women’s inheritance rights, stating, “Islam recognises the right of inheritance of women,” and used Islamic law to challenge those who seek to deprive women of their rightful shares.
Environmental protection rooted in Islam
Justice Isa’s commitment to environmental protection is also rooted in his interpretation of Islam. He invokes Islamic teachings on the balance of nature and humanity’s role as stewards of the Earth. In the Houbara Bustard Hunting Case, he ruled that it is the divine duty of the people of Pakistan to protect endangered species, referencing Islamic principles against cruelty to animals and linking them to constitutional rights.
3. Curbing religious extremism and promoting tolerance
There are also many other examples of Justice Isa’s commitment to curbing religious extremism and promoting tolerance:
Countering religious extremism with Islamic teachings
In various cases, such as the Faizabad Dharna Case, the Hazara Killings Suo Motu Case, and Quetta Commission Report, Justice Isa invokes Islamic teachings to denounce extremist ideologies and violence. In the Faizabad Dharna case, for example, he lamented the divergence between the actions of some who claim to love Prophet Muhammad (PBUH) and the virtuous life he led, stating, “violating the law, occupying public roads, restricting the movement of people, destroying property, and causing death and injury is unbecoming of bearers of the Muslim faith.”
Protection of religious minorities through Islamic principles
After the Jaranwala incident, where a Christian neighbourhood was attacked by mobs, he issued a statement referencing Quranic injunctions to condemn the attackers, quoted verses from the Holy Quran and said that Muslims were told to fight against those who harmed churches.
He highlighted that faith in Prophet Isa was one of the principles of Islam and recalled events from history where Muslim religious leaders had shown respect to Christianity.
Tackling hate speech
In 2017, Justice Isa issued orders to curb hate speech propagated by banned sectarian and religious organisations under the guise of Islam. He specifically stressed the need to counter hate speech that promotes violence and intolerance.
4. Rule of law and accountability
Throughout his career, Justice Isa has been a staunch proponent of the rule of law and accountability, particularly when it comes to the misuse of state resources, corruption, and environmental degradation.
He introduced the concept of “prebendalism,” which describes the practice of benefiting those in official positions at the expense of the state and the public. He criticised the distribution of land among civilian and military bureaucrats and judges, emphasising the importance of preserving land for public utilities and services. He argued that this practice harms impoverished citizens and undermines justice and Islamic values.
5. Promoting freedom of information and media
Advocating for an independent and responsible media
Throughout his career, Justice Isa has stressed need for an independent and responsible media in a thriving democracy. On many an occasion, he contended that a media free from external pressures is essential for informing and educating the public, serving as a check on power, and safeguarding citizens’ interests. He has also been vocal against instances where state authorities have censored or harassed journalists. He argues that such actions run counter to democratic principles and hamper transparency.
Standing with journalists
Justice Isa has shown solidarity with journalists who have faced abduction or harassment due to their work. Notably, he visited Matiullah Jan, a journalist who was abducted, to express his support. This gesture highlights his commitment to protecting journalists’ rights and recognising their vital role in society.
Transparency in the judiciary
Justice Isa’s commitment to transparency extends to the realm of the judiciary itself. He firmly believes that judges should not be shielded from criticism and scrutiny, aligning with his broader philosophy of open justice and accountability.
Advocating for open trials
Justice Isa has taken proactive steps to ensure transparency within the legal process. For instance, he filed an application for a public trial of the presidential reference against him. This action demonstrates his belief in open justice and his commitment to addressing allegations transparently and without fear.
Perspective on Article 184(3) and suo motu jurisdiction
1. Challenges in Suo Motu JurisdictionThe CJP-designate has consistently raised concern regarding the application and exercise of Article 184(3) of the Constitution, which grants the SC the authority to take suo motu notice of matters of public importance relating to fundamental rights. His views are evident in significant cases and key arguments:
Infectious wastes in KP case: In a suo motu case concerning the improper disposal of hospital waste in Khyber Pakhtunkhwa, Justice Isa criticised the invocation of Article 184(3) without satisfying the prerequisites of a matter of public importance and violation of fundamental rights. He objected to the director of the Human Rights Cell exercising these powers, emphasising that only the SC can wield suo motu powers, and the chief justice’s approval cannot replace an SC order.
Hafiz-e-Quran marks case: Justice Isa presided over a bench addressing the allocation of additional marks to Hafiz-e-Quran candidates applying for MBBS/BDS degrees. He underscored that neither the Constitution nor the rules empower the chief justice to create special benches or select judges for them. He also questioned the absence of a defined procedure for suo motu cases under Article 184(3) and highlighted the lack of a right to appeal in such cases. His order suggested that seniority should guide judicial appointments until comprehensive rules were established.
Journalists’ harassment case: Justice Isa’s objections to the formation of a larger bench in the journalists’ harassment case raised questions about the chief justice’s sole authority to initiate suo motu actions. This case exposed constitutional and procedural concerns.
Supreme Court (Practice and Procedure) Bill 2023 Case: A constitutional petition challenged a bill aimed at regulating the CJP’s powers to form benches and fix cases under Article 184(3). Justice Isa expressed concerns about the Act’s potential impact on the CJP’s powers and the distribution of authority among judges. He advocated for resolving this matter before addressing other cases.
2. Intra-court disagreements and implications
Justice Isa’s perspectives on Article 184(3) and suo motu jurisdiction have sparked disagreements within the SC. These disputes have significant implications for the court’s functioning and approach to constitutional jurisdiction, highlighting the pressing need for clarity in Article 184(3) and the roles of judges.
These internal disagreements reflect varying interpretations of Article 184(3) between Justice Isa and his colleagues, influencing court decisions and prompting questions about its overall approach to constitutional jurisdiction. This emphasises the need for reform in Supreme Court Rules in areas such as bench formation, case fixation, suo motu initiation, and appeals. They also illuminate the court’s challenge in balancing its roles as a rights guardian, public interest protector, constitutional arbiter, and judicial independence defender.
Means vs method: Justice Isa’s approach to legal procedures
Justice Isa’s recent emphasis on adhering to established legal procedures and methods raises questions about his consistency and approach. While advocating for adherence to the law, Justice Isa has sometimes bypassed established legal practices, even his previous positions and judgments, when it suited his objectives. Several key instances shed light on this matter:Imran Khan’s development funds case: In February 2021, during an unrelated case, Justice Isa initiated suo motu proceedings questioning the constitutionality of former prime minister Imran Khan’s announcement of creating development funds for lawmakers. This move raised concerns as it seemed to infringe on the traditional prerogative of the chief justice to invoke a suo motu case. Justice Isa neither sought nor received the CJP’s approval, choosing to exercise this power himself. This action appeared irregular and out of line with established practices.
Journalists’ harassment case: In August, Justice Isa received an application from journalists alleging harassment by government agencies. He entertained the application directly in his court, deviating from the usual practice of filing such applications in designated offices. Justice Isa issued notices to government authorities and set the hearing date before his bench, a procedure typically reserved for the CJP. This deviation from established procedures led to his exclusion from a larger bench formed to address the case.
Hafiz-e-Quran Marks Case: Justice Isa suspended all suo motu proceedings before the SC and temporarily curtailed the CJP’s authority to fix such cases. While hearing a case related to granting additional marks to Hafiz-e-Quran candidates, he decided to take suo motu notice about the CJP’s power to form special benches and fix suo motu cases. This move suspended all suo motu cases until the Supreme Court Rules governing the CJP’s powers were amended, challenging established norms.
BHC chief justice vs SC justice
Contrary to his later move, while he observed the role of Balochistan chief justice, Justice Isa upheld the chief justice’s exclusive authority to initiate suo moto actions. Perhaps his stance would carry more weight if there was evidence of substantial reforms during his tenure as chief justice of Balochistan.
Street justice: Return of Saqib Nisar?
Justice Isa’s recent actions outside the courtroom bear resemblance to the practices of former CJP Saqib Nisar, known for his public interventions and confrontations. Justice Isa has been involved in incidents where he took on the role of a vigilante judge:Random vehicle inspection on Constitution Avenue: Justice Isa confronted individuals in a vehicle parked on Constitution Avenue, Islamabad, suspecting their involvement in criminal activity. This incident raised concerns about his extrajudicial actions and interactions.
Confrontation over traffic blockage: He publicly criticised police officers in Islamabad for blocking traffic to accommodate President Dr Arif Alvi’s protocol, disrupting commuters without a compelling reason. This incident showcased his direct involvement in public matters outside the courtroom.
Altercation with a street vendor: Justice Isa confronted a street vendor on Constitution Avenue for committing illegal activities and obstructing the street. He demanded to see the vendor’s licence and permit and instructed him to vacate the area. This incident demonstrated his willingness to intervene in street-level matters.
While these actions may reflect a commitment to law and order, they also raise questions about the role of a judge and the potential for undermining established authorities. Such behaviour can invite criticism and challenges to judicial credibility in a charged political environment.
Clashes and crusades
Suo motu jurisdictionWhile we have discussed the concentration of suo motu power in the chief justice’s office above, it remains a focal point of contention in Justice Qazi Faez Isa’s drive for judicial reform. The unrestrained powers vested in the chief justice, particularly under Article 184(3) to invoke suo motu jurisdiction, raise concerns about checks and balances within the judicial system.
Justice Isa consistently calls for the regulation of this power to ensure transparency and accountability. His advocacy emphasises the need to establish clear guidelines and procedures for invoking suo motu jurisdiction, preventing its potential abuse.
Bench formation disparity
‘Mastering the Roster’, a statistical study, highlights a significant disparity in the allocation of important political cases among judges. This analysis underscores the imbalance in case assignment, with select judges handling a substantial number of significant cases. This concentration of power raises concerns about the potential for the judiciary to be influenced by personal interests, undermining the principle of an equal and impartial judiciary.
Justice Isa advocates for reforming the process of bench formation to address these disparities. His proposals call for restructuring bench allocation to ensure a democratic and transparent system. He emphasises the need for established rules and guidelines to govern the allocation of cases among judges.
One crucial aspect of Justice Isa’s stance is his demand for structured criteria that determine the composition of benches. This would reduce doubts about the motivation behind bench selection, minimise favouritism, and promote fairness and impartiality within the judiciary.
Appointments of judges through the JCP
The introduction of the Judicial Commission of Pakistan (JCP) and the Parliamentary Committee aimed to make the judge appointment process more democratic and transparent.
Justice Isa proposed revisions to appointment rules to curb the unchecked powers of the CJP in the process. Justice Isa advocates for a structured appointment system that prioritises merit over personal preferences or political considerations.
His advocacy extends to restricting the CJP’s powers in the appointment process, ensuring that appointments are made with impartiality and adherence to established criteria.
Justice Isa’s most contentious opposition was to Justice Ayesha Malik’s appointment to the SC. This dispute exposed the intricacies of judicial appointments in Pakistan.
Justice Malik, a former partner in Justice Isa’s law firm, RIAA, raised concerns about potential conflicts of interest. Despite their prior association, Justice Isa opposed her appointment, emphasising his commitment to impartiality.
Justice Malik’s nomination was significant as it could have made her the first female justice in the SC. Supporters applauded this potential milestone, while Justice Isa insisted on a merit-based and transparent selection process, irrespective of gender.
Additionally, Justice Isa emphasises the need for clear and detailed criteria for merit-based appointments.
Navigating challenges, embracing hopes and dreams
As he steps into the pivotal role of CJP, Justice Isa inherits a landscape fraught with intricate issues and unresolved problems that have marred the judiciary’s credibility and effectiveness. Four of his immediate predecessors have left behind a legacy of challenges that cast a long shadow over Pakistan’s judicial system.Elections and caretaker setup
Chief among these challenges is the controversy around the delay in general elections and the scope of powers vested in the caretaker government. Chief Justice Isa’s role in ensuring the democratic process and upholding the rule of law will be paramount, especially in light of the recent dissolution of the National Assembly, leading to legal disputes over the authority to announce election dates.
Military court cases
Justice Isa’s past dissent against granting military courts constitutional cover underscores his unwavering commitment to judicial principles. However, the unresolved matters surrounding military court cases will put his dedication to justice to the test.
Supreme Court Practice and Procedure Act 2023
The implications of the Supreme Court Practice and Procedure Act 2023 is another challenge for Justice Isa. Ensuring that this act aligns with principles of justice and transparency is a crucial task, as its provisions impact the court’s procedures, efficiency, and access to justice. His decisions in this regard will have far-reaching consequences for the judiciary’s functioning in the years to come.
Pending reference against Justice Naqvi
Chief Justice Isa faces the significant challenge of addressing the unresolved reference against Justice Mazhar Ali Naqvi. This case exemplifies the delicate balancing act he must perform — holding fellow justices accountable while avoiding any perception of bias or witch hunts. It highlights the importance of transparent and fair processes for handling such references while safeguarding the judiciary’s integrity.
Shaping legacy
Chief Justice Isa’s strategies and agendas in addressing these multifaceted challenges will define his legacy. Here, we explore the major items on his agenda related to constitutional jurisdiction and assess his ability to shape this agenda while navigating the legacy of past decisions.Restoring judicial independence and credibility
Justice Isa’s judgments on judicial appointments, military court trials, and superior judiciary accountability give an insight into his perspective: He aims to strike a balance between judicial independence and accountability, and the judiciary’s role as the guardian of the Constitution is central to his vision.
Internal accountability and the SJC
The Supreme Judicial Council (SJC) plays a crucial role in internal judicial accountability. Chief Justice Isa’s views on enhancing transparency within the SJC while safeguarding judicial independence reflect his dedication to maintaining a delicate balance. His efforts to promote transparency in SJC proceedings underscore his commitment to accountability within the judiciary.
External challenges to judicial independence
External pressures on judicial independence, characterised by violations of court orders and pressures on the judiciary, pose significant challenges for the CJP. Justice Isa’s leadership in upholding the judiciary’s authority in the face of these challenges will be instrumental.
Undoing the Gulzar Doctrine: Confronting the ‘powerful’
Chief Justice Isa also faces an array of complex cases that challenge the interests of powerful entities such as the military courts’ conviction appeals, the Musharraf treason trial appeal, land acquisition by armed forces cases and the Ravi Riverfront Urban Development Project. These cases collectively represent a significant challenge to the previous practice of avoiding uncomfortable issues that challenge or threaten elite interests, and they will test Chief Justice Isa’s commitment to justice and the rule of law.
Addressing immediate issues
Chief Justice Isa faces immediate challenges related to provincial and general elections, the fate of military trials of civilians, and the controversy surrounding presidential assent to legislative amendments. His decisions on these pressing issues will have a profound impact on Pakistan’s political and legal landscape.
In navigating these challenges and pursuing his vision, Chief Justice Isa stands at the helm of Pakistan’s judiciary, poised to shape its future while upholding the principles of justice, accountability, and the rule of law.
Land reforms case
The Qazalbash Waqf Case is a landmark legal battle that bears profound significance for Pakistan’s socio-economic landscape and the judiciary’s role in shaping it. At its core, this case questions the Federal Shariat Court’s judgment that held that the land reforms initiated by Zulfikar Ali Bhutto in the 1970s were incompatible with Islamic principles and the Constitution. It challenges the judiciary to navigate a complex terrain where religion, politics, and social justice intersect.
This case is not merely a legal matter — it embodies the aspirations of millions of Pakistanis who have long sought equitable access to land and resources. It is a litmus test of Chief Justice Isa’s commitment to a progressive interpretation of Islam, a belief in upholding the Constitution, and a dedication to the will of the people as expressed in their supreme legal document. Justice Isa’s demonstrated interest in fostering a progressive vision of Islam, divorced from rigid orthodoxy, makes this a prime opportunity to leave an indelible mark on Pakistan’s legal landscape.
Furthermore, the case challenges the notion of handing over the reins of interpreting Islam solely to religious scholars or clerics. Instead, it underscores the judiciary’s pivotal role in reconciling religious principles with modern constitutional values. In this context, this case represents an ideal opportunity for CJP Isa to shape the direction of Islamic jurisprudence in Pakistan, emphasising its compatibility with a progressive and inclusive vision for the nation. It is a chance to reaffirm that the SC, as the guardian of the Constitution, will safeguard the rights and welfare of all Pakistanis, irrespective of their socio-economic status.
In essence, the case is a litmus test for the judiciary’s role in fostering a just and equitable society. It is a chance for Chief Justice Isa to demonstrate that he is a custodian of the people’s welfare, an upholder of the Constitution, and a proponent of a progressive, inclusive, and constitutionally grounded vision of Islam. The outcome of this case could reverberate throughout Pakistan’s history, reshaping its socio-economic landscape and reinforcing the judiciary’s pivotal role in ensuring justice and equity for all.
In the complex narrative of Pakistan’s judiciary, the spotlight often falls on individuals who dare to challenge the status quo, much like Justice Isa. As we have journeyed through his remarkable career, one thing has become undeniably clear: pinning our hopes solely on one individual, even someone as principled and dedicated as Justice Isa is both foolish and unreasonable.
Pakistan has witnessed the rise and fall of many self-proclaimed saviours, both in khakis and robes, and we have been taken for a ride on numerous occasions. Yet, despite the disillusionment, the people of this resilient nation continue to harbour a glimmer of hope. It is this eternal hope that keeps us searching for a messiah, someone who will usher in the reforms and justice that we so desperately need.
As Justice Isa ascends to the role of CJP, we must issue a cautious but sincere plea to him and those who follow in his footsteps. It is a position of immense power and responsibility, but it is also a fleeting one. We implore the chief justice not to be carried away by the allure of power, not to hoard authority, but rather, to use his tenure wisely.
Justice Isa’s crusade to bring the office of the CJP under the law and to structure its powers is a noble endeavour, one that could potentially stand as a greater achievement than any other in recent memory. However, it is not a task to be taken lightly. The pursuit of justice and reform should be focused, devoid of personal vendettas, and free from any lingering animosity. A divided court leads to a fragmented system, and in a nation as diverse and complex as Pakistan, unity among the judiciary is paramount.
As we observe the unfolding chapters of Pakistan’s judicial history, we must remember that change is a collective effort. While individuals like Justice Qazi Faez Isa play a pivotal role, true transformation requires a broader commitment from all stakeholders. The people of Pakistan remain hopeful, ever yearning for a brighter future, and it is our collective responsibility to ensure that the judiciary, under the leadership of the chief justice, serves as a beacon of justice, fairness, and accountability for all.
Hope springs eternal, and it is this hope that should guide us towards a better tomorrow.
Justice Qazi Faez Isa — Pakistan’s judicial maverick
Justice Isa’s tenure as a jurist has been marked by a commitment to upholding democratic values, progressive Islamism and the rule of law.
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