Qazi Faez Isa's Spoilt Legacy

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CJP Isa assumed the office of the top jurist in the country on the back of a storied career littered with examples of his principled stances. Yet, after adopting the robes of the chief justice, his pinciples and stances all unravelled

2024-10-25T19:46:00+05:00 Sabih Ul Hussnain

On October 25, 2024, Qazi Faez Isa walked out of the Supreme Court for the last time as its chief justice. He would like to think he would do so with many feathers in his cap while leaving behind a legacy of pioneering moves for the judiciary to boost transparency, upholding the supremacy of Parliament and emphasising the importance of governing a country by its elected representatives. But his critics, including some whom he once counted as brother judges, note that during his tenure, CJP Isa forgot perhaps the most important tenet of his position: defending the independence of his institution, the judiciary.

Unlike his predecessors, Qazi Faez Isa had assumed the office of chief justice after fighting an extensive legal battle against the then-regime's tyranny, which opposed his bold judgments and outspoken stance against the military establishment. The legal battle all but pitted him against his brother judges. Although Chief Justice Qazi Faiz Isa ultimately emerged victorious, the nexus of the then-Pakistan Tehreek-e-Insaf (PTI) government and establishment against him furthered the concept of the rule of law in his mind. 

Some believe that during the hearing of the Presidential Reference against him in the Supreme Judicial Council (SJC), Chief Justice Qazi Faez Isa had raised his grudge against the PTI and then-military establishment.

Be it a grudge or the CJP's belief in the rule of law, CJP Isa's tenure remained a beneficiary of the current system as reflected in all of his judgments relating to cases of a political nature. 

Many believe that Isa, serving as the Chief Justice, was an important factor in ensuring the continuity of the current government.

What was striking for many was how CJP Isa, who withstood the establishment's assault on his integrity and that of his family as a judge of the top court, maintained such an exemplary relationship with the executive and the government.

He also maintained an exemplary relationship with the superior bars. 

Apart from the judicial side - where CJP Qazi Faez Isa was involved in several key cases that had profound and potentially lasting impacts on the country's landscape and fabric - his conduct on the administrative side also reflected that all stakeholders were on the same page. 

Burdens of the CJP's robes

When Qazi Faez Isa assumed the office of Chief Justice of Pakistan on September 17, 2023, it is believed he did so with many challenges pending before him. 

One such challenge was the deep division and polarisation amongst the judges of the top court because of the alleged grouping promoted by CJP Isa's predecessor, Umar Ata Bandial, and his pro-PTI leanings.

The polarisation further deepened during CJP Isa's tenure, especially following his judgment on PTI's intra-party elections case which withdrew the party's 'bat' electoral symbol and created an impression of all but booting the party out of the running in the February 2024 general elections.

Despite the fact that Chief Justice Qazi Faez Isa tried to mend ties with his brother judges, especially Justice Munib Akhtar and Justice Mansoor Ali Shah, CJP Isa failed in uniting judges.

Even on his final day as the Chief Justice, Isa was handed a proverbial slap by his brother judges as many skipped his farewell full court reference while Justice Shah wrote a damning letter panning his tenure, and accused him of poor leadership and an inability to build consensus and instead "fostering bitter divisions and fractured relationships of colleagues within the court".

A major blow came in the form of a letter written by six judges of the Islamabad High Court (IHC) alleging interference from security agencies in judicial work. CJP Isa's perceived 'cold response' to the concerns raised by the higher judiciary and his reluctance to issue a clear, forceful, institutional response was seen as part of a growing trend of capitulation to the executive - the very executive against whom CJP Isa once railed against.

And when CJP Isa referred to the government the matter of forming an inquiry commission on the matter, he all but alienated those judges who were still on the fence.

It became one of the reasons that the top court's Justice Athar Minallah kept his distance from the chief justice.

The blow hardened when former Chief Justice of Pakistan Tassaduq Hussain Jilliani refused to head the inquiry commission. Left with no option, CJP Isa initiated suo motu proceedings on the matter. This served as the moment when the proverbial Pandora's box opened as judges at other high courts from around the country stepped forward and admitted the interference from agencies.

CJP Isa responded by not firmly taking up the matter with urgency but rather allowing it to cool, tossing it into the purgatory of pending cases. Despite accosting fellow judges for not displaying seriousness and urgency to decide long-pending cases, CJP Isa on Friday exited the Supreme Court by letting a case relating to the integrity of the country's judiciary gather dust in purgatory.

Justice Shah slammed outgoing CJP Isa for behaving like an "ostrich, with his head in the sand, remained complacent and indifferent to external influences and pressures on the judiciary."

"He showed neither the courage nor the moral fortitude to defend the judiciary, rather ceded ground to those who sought to weaken the courts for their own gain, thereby compromising the very foundation of the rule of law."

CJP Isa, who withstood several campaigns against his person and his family during his tenure in the superior judiciary, was the subject of several campaigns while serving as the Chief Justice. While he always termed campaigns against him as ineffectual, he claimed to take exception to alleged media campaign against other judges and the Supreme Court seriously and oversaw official action against journalists. Yet, the campaign which finally appeared to get to him was over his verdict in the Mubarak Sani case. It not only forced him to review his verdict but then admit a "mistake" and change the verdict in light of consultation with religious scholars on a legal matter. A capitulation just months after, as a Chief Justice-designate, he had vowed to stand by minorities whilst inspecting the rubble of atrocities perpetrated against a minority community in Jaranwala.

Putting democracy on track

Observers believe that one judgement for which Chief Justice Isa deserves credit for holding the February 2024 general elections and thus serving democracy in the country.

This was amply demonstrated when the Lahore High Court issued orders which made holding elections on February 8, 2024, a near impossibility, CJP Isa acted quickly and ensured the return of democracy to Pakistan and that the polls are held on time. 

He also directed urgent fixing of election cases and deciding them. 

After the elections, CJP Isa also played a crucial role in appointing the Election Tribunals in Punjab.

Chief Justice Isa also set aside the lifetime disqualification judgment previously passed by the Supreme Court, holding that it did not accord with the Constitution.

He also overturned brother judge Justice Munib Akhtar's judgment regarding Article 63A - defection clause - which many considered foundational for the ongoing political crisis and termed the rewriting of the Constitution. 

However, CJP Isa reversed the judgment, ending the dictatorship of party leaders within Parliament by allowing members of Parliament to vote per their will. 

Either through procedural length or constitutional touchstones, Chief Justice Isa stood by the book and decided matters accordingly throughout his tenure.

Critically, CJP Isa set a marker when the first action he took after assuming office was to introduce some democratic elements within his office by sharing his exclusive powers of forming benches with two senior-most judges of the Supreme Court by approving the Practice and Procedure Act.

This effectively ended the past practice of chief justices surrounding themselves with cliques and effectively hijacking the Supreme Court. 

He also ensured that full court meetings, which had not been held for four years prior to his appointment, resumed. No full court hearing on critical constitutional cases had been held for nine long years, but it was resumed during CJP Isa's tenure and took place twice in less than a year.

Chief Justice Isa also immediately stopped the past practice by some former Chief Justices approving the cause list of cases and inserting and removing cases from it. Now, cause lists are prepared by the Registrar as provided in the Rules.

Chief Justice Isa ensured the practice of first-in-first-out in the hearing of cases, except where the law or a category of cases required otherwise.

Extension rumours

As the sun started setting on his tenure, CJP Isa was accused by his critics of making efforts for an extension in his service.

After months of rumours and speculations and some contentious measures adopted by the government through Parliament, CJP Isa proved his decision not to seek an extension under the 26th constitutional amendment. 

Despite facing severe opposition from the PTI, with multiple requests seeking CJP Isa's recusal from their cases, Chief Justice Isa granted PTI's incarcerated founder, Imran Khan, an opportunity to address the court in the National Accountability Bureau (NAB) Amendment Case. 

CJP Isa restored the NAB amendments under which Imran Khan later applied to the court to seek relief. 

Correcting historical mistakes

Having taken on the mantle of the chief justice by expressing his desire to ensure transparency in the judiciary and restore public confidence in the institution, CJP Isa sought to right some historical 'wrongs' the public attributes to the judiciary.

In this regard, Chief Justice Isa fixed the famous Zulfikar Ali Bhutto Reference for hearing and deciding it. The case should have been heard and decided on its turn.

Chief Justice Isa also heard and decided the first high treason case in Pakistan's history, which former chief justices had placed in the proverbial cold storage; established a legal precedent and the consequences to be faced for subverting the Constitution.

Chief Justice also implemented the right to Access to Information (Article 19A of the
Constitution) by setting aside the High Court judgment, which held that the Supreme Court did not have to comply with this fundamental right.

He also commenced the first live broadcast of important public interest cases.
Not only this, the top court, to ensure transparency, started issuing quarterly reports on the disposal of cases, which is done only in a few countries of the world.

During his tenure, Chief Justice Isa also tried to persuade colleagues to write judgments within a reasonable time and requested other judges to work on Saturdays, officially designated as the judgment-writing day.

CJP Isa also curtailed the summer vacations of judges, advising colleagues not to take more than a month of vacation in a year.

He also constituted a committee to propose amending the Judicial Commission of Pakistan Rules 2010 and relinquished the stipulated absolute right of the chief justice/commission chairman to propose nominations.

CJP Isa also stopped the earlier cherry-picking in nominating junior Judges by disregarding their seniors and ensured that all vacancies for judges in the Supreme Court were filled for the first time in years.

He also appointed an Aalim member to the Shariat Appellate Bench of the Supreme Court, made it functional and convened it for the first time in four years.

End of a 'dark' era

Advocate Faisal Chaudhary, who is affiliated with the PTI, termed CJP Isa's tenure as the 'darkest era of the judiciary'. 

"The tenure of Qazi Faiz Isa was the darkest era in the history of the judiciary," Advocate Chaudhry told The Friday Times

Chaudhry added that during CJP Isa's tenure, violations of fundamental rights enshrined under the constitution were ignored, and the judiciary, as an institution, was significantly weakened.

He further claimed that there was an impression that the CJP had done everything to seek an extension in his services, adding that the use of such tactics was unbecoming of the conduct of a judge. During his tenure as the top judge, CJP Isa had repeatedly denied reports and questions of whether he was seeking a form of extension, but ultimately, the 26th Constitutional Amendment did not extend his tenure, and he retired on Friday, October 25. 

Advocate Chaudhry claimed that CJP Isa was vindictive against a political party and considerably weakened his institution, adding that CJP Isa could not tolerate his colleague judges who held dissenting views opposed to his own.

"Just as Justice Muneer gave a decision, Qazi Faiz Isa stabbed his institution in the back," claimed Advocate Chaudhry.

He further claimed that several lawyers had celebrated CJP Qazi Faiz Isa's retirement, further concluding that the darkest era had ended.

Former Additional Attorney General Tariq Mehmood Khokhar, while talking to The Friday Times, focused his concerns on the 26th constitutional amendment, which took place during CJP Isa's tenure and led to the exclusion of Justice Mansoor Ali Shah for the post of chief justice.

"Self-created delusions were instrumental in Justice Shah's ouster," said Advocate Khokhar, adding that he was distrusted and feared without any corroborative evidence. 

"The role of the established order was pivotal. Others collaborated for varying reasons: his impartiality, independence, brilliance and so forth."

"Pique and revenge were also at play."

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