THE judicial history of our blighted land is replete with verdicts in favour of usurpers and against elected civilian leaders, including several prime ministers — and have seen their execution or removal from office, imprisonment and/or disbarment from holding public office as a consequence.
There are far fewer examples of the judiciary being weaponised to act against one of its own. You will have to delve deep into the past to find any. Possibly, the one high-profile recent exception was that of Islamabad High Court’s Justice Aziz Siddiqui who was sacked in October 2018, three months after going public with allegations of ISI interference in court cases, bench tampering.
Against this backdrop, the just-concluded case based on Justice Qazi Faez Isa’s petition before a 10-member Supreme Court bench, challenging as mala fide a reference filed against him by the president before the Supreme Judicial Council, has split opinions in the legal fraternity.
A handful of senior lawyers have expressed satisfaction that the verdict quashing the reference against Justice Isa vindicates the judge and the referral of the matter to the Federal Board of Revenue will further cement this as the judge’s spouse has demonstrated in court that the family has nothing to answer for.
>It is an example not of an elected leader but a justice of the Supreme Court whose words in a verdict were unkind to the most powerful institution in the country.
They argue that despite the Supreme Court directive to the FBR to move at a quick pace to conclude the matter in 60 days, as was demanded by the former law minister Farogh Naseem who led the government team opposing Justice Isa’s petition in court, not much should be read into this order.
On the other hand, many eminent lawyers have raised concerns that the short order has enough alarming elements; those may mean that the judge and his family continue to face pressure via various government forums and also a vilification campaign on social media that has continued unabated ever since the reference was filed.
And finally, they fear, Justice Isa may even face a fresh reference before the Supreme Judicial Council as even a Rs100 discrepancy found by the government-run FBR can trigger a misconduct charge against the honourable judge, even though it has now been established the properties in question do not belong to him.
Of course, as a layman I can’t really decide which of these two arguments carries more weight and which side’s view will reflect in the emerging scenario over the next eight to 10 weeks. Lawyers have referred to points one and 9 and 10 of the short order to support their contention.
If I am honest I find it difficult to fathom the legal intricacies and legalese itself. So, how do I reach a halfway decent conclusion on the state of play following the verdict? Definitely zooming out and trying to find a larger context would help. Or I won’t see the wood for the trees.
Democracy first came under assault before my birth but the Maulvi Tamizuddin Khan case and the role of Justice Munir has to be the first marker. Justice Munir was later to lament on record for having assisted in the slaughter of the nascent representative rule in the country. His critics justifiably, even if harshly, described this as a case of crocodile tears.
Fast forward to the 1970s. Not only was the elected prime minister toppled in a military coup but the Lahore High Court first and then the Supreme Court was weaponised to physically eliminate him because the dictator soon realised that Zulfikar Ali Bhutto was far too popular to keep out of the game.
Then there was the verdict in Junejo’s sacking by Zia in 1988 under the infamous Eighth Amendment. Which reporter would not recall that the petitioner Muhammad Khan Junejo was in the Supreme Court and outside his motorcade seemed ready with a flagged car and escort to take him back to Prime Minister House after the verdict? Zia had already perished in an air crash. Gen Mirza Aslam Beg was the COAS.
What happened next we were to learn later. An emissary of the COAS arrived in the judges’ chambers and told them that Junejo’s restoration, which they seemed poised to order, would trigger martial law and that they would be well-advised at that stage to let fresh party-based elections take place in November that year.
The events from 1990 onwards are too recent so needn’t be recalled in detail. Suffice it to say that either the military leader by himself or in consort with the president he backed continued to preside over this musical chairs where one prime minister was ushered in only to be shown the door well before the end of their term, followed by the other.
In all but Nawaz Sharif’s case in 1993, when the army chief forced him to resign and dissolve the assemblies even after his dismissal by the president was overturned by apex court, the Supreme Court endorsed such decisions.
After the PPP government pushed through constitutional reform and did away with the president’s powers to sack prime ministers, the chronology of evidence suggests that the judiciary was again weaponised to control and even oust elected leaders after their falling out with the military brass.
Rare as it may be but Justice Qazi Faez Isa’s case has to be seen in this perspective. It is an example not of an elected leader but a justice of the Supreme Court whose words in a judgment were unkind to the most powerful institution in the country. What he has faced since is a direct consequence.
His integrity has stood him well but not his bold outspokenness. As a journalist pointed out on social media it wasn’t as if his words brought a cataclysmic change in, or threatened the pre-eminence of, the institution. I guess it was enough that he dared when almost everybody else has been silenced.
The writer is a former editor of Dawn.
Published in Dawn, June 21st, 2020