Ms. Serena Isa’s tax filings were stated to be irregular. She had not included the properties in London she had bought for her children as part of her wealth statement. A majority of judges in the Supreme Court wanted this to be thrashed out before the Federal Board of Revenue (FBR) because they felt procedural propriety should be followed and if Justice Qazi Faez Isa and his family were in the right, they had nothing to hide and should welcome the opportunity to clarify their position.
This was opposed by everyone siding with Justice Isa at the time because they saw it for what it was: a carefully crafted witch hunt, where no issue of misconduct on the part of the judge could possibly have arisen as it was, at best, an irregularity which warranted a fine for his wife, who had the means to fund the purchase of apartments abroad as well as the receipts to show how she did so. This was also the time when the government was trying to clutch at straws by arguing that a wife is always tied to a husband in tax law regardless of her independent income sources and using the outdated practice of Sati or self-immolation on a dead husband’s funeral pyre to prove their point had deep roots in subcontinental culture.
To put it simply, everyone who sided with Justice Qazi eschewed technicalities and saw the larger picture for what it was: a malafide attempt at kicking out a judge because he threatened the interests of the establishment. If everyone back then had stuck to the letter of the law and that alone, it would have become difficult to argue against the initial full court majority order, which sent the tax discrepancies of Serena Isa to the FBR commissioner to review thoroughly.
In the dispensation of justice, sometimes the most difficult thing to balance is magnanimity. Displaying generosity to one side by a judge often comes at the expense of the other party’s interests. It is this particular balance which recent chief justices have been unable to strike. It is this balance that was hoped would finally find a structural root during the tenure of Chief Justice of Pakistan (CJP) Qazi Faez Isa.
CJP Qazi showed great magnanimity when a bench, which he led, condoned the delay caused by the ECP in the announcing of an election date despite a Supreme Court order directing them to do so. Instead of punishing those responsible for the delay, his bench decided it was in the best interests of the nation to move on and cajoled the date of February 8th for general elections out of the executive. Let us all move on, he said. And move on, we did.
CJP Qazi was also magnanimous in not interfering with the caretaker setup, which lacked any constitutional mandate beyond November 2023. CJP Qazi’s bench felt it was more important to settle an election date than to make those responsible answerable. We were all moving on.
Perhaps CJP had determined that the truth must come out, no matter what the means of its discovery. He may have thought the pattern the government was insisting upon had merit
Then, the ECP took the bat symbol away from the PTI. Here, CJP Qazi eschewed his gown of magnanimity for his technical magnifying glass and agreed with the ECP’s position. An institution which had just been given a free pass after failing to uphold the solitary constitutional command it has been set up for, that of holding elections, was being agreed with when it pulled out the technical edition of Black’s law dictionary to effectively engineer the disenfranchisement of millions of voters.
When the CJP Qazi-led bench was told this would be the precise effect if they decided to affirm the ECP’s decision, CJP Qazi candidly remarked that this was not the issue before him and if the effect of such a decision would lead to the political party losing more than its symbol, in violation of the constitutional right to associate as a party, CJP Qazi's court told us that they would tackle that issue when it arose. They also noted that the relevant illegal rules of the ECP, which allowed for a political party to be deprived of reserved seats, were not challenged by anyone currently before the court.
Former CJP Umar Ata Bandial’s mother-in-law had a private conversation with a friend who was the wife of a lawyer petitioning the Supreme Court, where she expressed her political opinion. This conversation was surreptitiously recorded and leaked to the public. The government of the day pounced on it and decided unilaterally to form a commission of inquiry. This commission, the government decided, would be headed by Justice Qazi Faez Isa. Before the Supreme Court restrained this commission from working, Justice Qazi had begun to run the commission set up by the government to inquire into the issue. A holistic approach would have perhaps led him to ask some of the same questions that Justice Babar Sattar of the Islamabad High Court is asking of the government today regarding who records these conversations and under what authority. But perhaps CJP had determined that the truth must come out, no matter what the means of its discovery. He may have thought the pattern the government was insisting upon had merit: that Bandial’s mother-in-law was liaising with the lawyer’s wife on Bandial’s behalf.
CJP Qazi still has to see the pattern here, and has insisted that his tenure has been free of meddling. He insisted on the high courts fending for themselves after the high court judges complained of being left to fend for themselves in the first place
In the aftermath of the February 8 general elections and the brouhaha that followed, Taimur Jhagra retweeted a statistical analysis by a Twitter (now known as 'X' and which remains blocked for millions of Pakistanis since the elections) user called "Osama Khalyd" of the Form-45s uploaded by the ECP of his constituency. Khalyd noted that 40% of the vote counts from polling stations uploaded by the ECP from Jhagra’s constituency ended in zeros. Any random set of numbers, such as votes counted, should inevitably fall into a set pattern of randomness, with the last digit as likely to be zero as any other number from 1-9. For the vote count numbers of Jhagra's constituency to qualify as random, with 40% ending in zeros, would be a one-in-a-trillion. Your chances of being eaten by a shark are one in 3.7 million. Your chances of being struck and killed by lightning are one in 1.9 million. As the statistician said, you would have a better chance of being eaten by a shark whilst being struck by lightning (1 in 57 billion) than to get these poll numbers randomly. However, the Supreme Court has yet to see a pattern here while we wait for these challenges to make their way through the election tribunals first. This, whilst the government formed by parties that are beneficiaries of electoral improprieties, contemplate constitutional amendments.
Six judges of the Islamabad High Court wrote to the Supreme Judicial Council (SJC), complaining specifically of cases of interference by the executive in their judicial functioning. Judges of every high court have since written to the Supreme Court, asking for an institutional response to the IHC judges' claim. Judges of the Peshawar High Court have even detailed how they received terror threats when deciding cases against the establishment’s interests. The district judiciary of Lahore has pleaded for a code of conduct which would mandate them to be shielded from the executive and would require them to report any approaches. CJP Qazi still has to see the pattern here, and has insisted that his tenure has been free of meddling. He insisted on the high courts fending for themselves after the high court judges complained of being left to fend for themselves in the first place.
If the CJP Qazi of today was hearing the petition of Justice Qazi against the reference filed against him, would he have spotted the pattern of ill-intent? Or would he instead have asked for proof? Because back then there was no proof, just a pattern. This pattern was something that the majority of the Supreme Court initially failed to see. It took Justice Qazi arguing for himself, his wife crying at the podium, and Justice Maqbool Baqar and other judges rallying their companions in the name of honour to overturn the decision in review. There was only the plausibility of an allegation, a pattern of harassment and the government’s interests being threatened. But it that wasn’t enough then, because there wasn’t any proof, according to CJP Bandial and others who authored the the first majority opinion.
CJP Qazi, it seems, doesn’t believe in any larger pictures or personal judgments if there is no proof. It is a relief then that he was not around to adjudicate his own case; because there would likely never have been a Justice Qazi left to become the chief justice if he had been.