Last week in my column for Daily Times I had expressed my apprehensions that things are moving fast on the path to doom and destruction. I shared the view that before the judgement in Faizabad Dharna case review is announced by the Supreme Court, fate of one of its highly reputed independent and forthright judges –Mr Justice Qazi Faez Isa would be decided under the cover of a shoddily moved reference by the Presidency before the Supreme Judicial Council and under attack of a most vicious character assassination campaign by the proxy legal and media warriors dancing to the tunes played by the bag-pipers of Aabpara.
Ominous developments in fast forward mode seem to be sounding a strange death-knell. Though Justice Faez Isa stirred the hornets nest with his historic judgements annoying the government, Praetorian Establishment and their proxies –the Labaik Party and its leaders responsible for the notorious Faizabad Dharna, that brought normal life to standstill for 21 days in the Federal Capital a la courtesy collaboration with apex intelligent and the media.
It was established beyond any doubt that all three were collaborators in meddling arbitrarily in a most deplorable conspiracy that aimed at destabilising democracy and creating conditions for internal chaos and anarchy. Faizabad Dharna by Allama Khaddim Hussain Rizvi and gang was perhaps the first stone cast for ousting Prime Minister Nawaz Sharif’s government through judicial gerrymandering by the Establishment to replace him with PTI leader Imran Khan whom they had been grooming for the job for nearly 22 years.
Justice Isa did not need a Sherlock Holmes-Dr Watson team to identify the intelligence agency and the ‘players’ overtly and covertly involved in the conspiracy. Indeed, there could not be a better proof of it all than the video that went viral over almost all television channels showing a senior army officer disbursing cash envelopes to Labaiki protestors to ‘provide them money for food and transport’ to return home as if they were ISI’s liability. It was 1977 I remembers how for the first time huge amounts were distributed among the rowdies by the intelligence agencies to de-stabilise a popularly elected government of Pakistan’s charismatic leader Zulfikar Ali Bhutto. It was a joint project by General Ziaul Haq and CIA. Zia wanted to takeover to usurp power while Americans wanted to teach ZAB a lesson for defying Washington in seeking nuclear deterrence that finally made Pakistan’s defence impregnable.
I am sure people would also remember how brazenly in the post 1988 period the then Army Chief Aslam Beg, his two DG ISIs Hameed Gul and Lt General Asad Durani acted in collaboration with the then President Ghulam Ishaq Khan in the first place to prop up Intelligence-backed electoral alliance known as IJI to stop Benazir Bhutto’s landslide followed by a similar contraption in 1990 elections funded in million of rupees by ISI to once again block return of Bhutto.
May God grant Air Chief Marshal ® Asghar Khan highest place in heaven for exploding the conspiracy in his petition in the Supreme Court exposing the then President Ghulam Ishaq Khan, generals Aslam Beg, Hameed Gul, Asad Durrani with many others for their conspiratorial collaboration to subvert democracy and Benazir Bhutto. In the historic Supreme Court judgement by Justice Iftikhar Choudhry in Air Marshal Asghar Khan’s petition, all the rogues elements found involved in it were red-pencilled for maximum punishment.
Though the judgment is still waiting to be implemented, when executed it will ultimately have far reaching consequences. Praetorian intrigues hatched by super masters much like General Pervez Musharraf who was facilitated to escape prosecution for high treason and alleged murders of Benazir Bhutto and Nawab Akbar Bugti by no other than the then Army Chief General Raheel Sharif would be rightly fixed.
At the end of the day if one looks at Justice Qazi Faez Isa and Justice Mushir Alam’s judgment in Faizabad Sit-in case, one would find it to be powerfully re-enforcing the earlier indictment of the country’s super intelligence apparatus by the Supreme Court in Air Marshal Asghar Khan’s petition.
Ever since his elevation to the Supreme Court in September 2014, Justice Qazi Faez Isa has come into lime light because of his strong dissent and disagreements with his fellow judges. He became the most shining star of the judiciary by high profile cases such as the 21st amendment, the houbara bustard and on a matter related to the chief justice’s discretionary power to entertain public interest litigations. He also authored the judgment on the dismissal of National Accountability Bureau (NAB’s) appeal regarding the reopening of the Hudaibiya Paper Mills case against the Sharif family. He also opposed the CJP Jamali when he wanted through a full court meeting, to consider names of a few lawyers for giving them status of senior advocates of Supreme Court. Justice Isa strongly opposed the move to give that status to those lawyers, who had supported ex-military ruler Pervez Musharraf’s November 3, 2007 PCO and emergency. It denied senior status to even GPM’s favourite currently Law Minister Dr Farogh Naseem.
Justice Isa had remained in headlines during the tenure of ex-chief justice Mian Saqib Nisar for questioning the manner CJP abused public interest litigations initiated by the Human Rights Cell of the Supreme Court. He opposed former CJP’s decision to reconstitute the bench in which he himself was a member. He noted: ‘However, before Article 184(3) could be read, the Chief Justice intervened and said he would be reconstituting the bench and suddenly rose up”. “The bench was then presumably reconstituted … I say presumably because no order was sent to me to this effect. However, a two-member bench did assemble later, from which I was excluded. This for me is a matter of grave concern.” “In my humble opinion it is unwarranted and unprecedented to reconstitute a bench in such manner, while (it was) hearing a case. To do so undermines the integrity of the system and may have serious repercussions,” Justice Isa said in his note. Interestingly, his view was also endorsed by other member of the bench Justice Mansoor Ali Shah’. Justice Isa passed severe strictures on Federal Interior Minister Ch Nisar Ali Khan in his findings in inquiry into massacre of Quetta lawyers in terrorist attack. He expressed serious exception to Minister of Interior’s conduct, failure of law enforcing agencies and advised ministry of interior to severely punish all those mentioned in his findings.
Justice Isa differed with the opinion of his senior Justice Sheikh Azmat Saeed in Sheikh Rasheed’s disqualification case too, much to the disappointment of Sheikh’s invisible supporters. It may be mentioned here that Justice Isa raised serious questions over the jurisprudence evolved in view of Panama Papers verdict regarding the disqualification of lawmakers, calling upon the apex court to make every effort to dispel any impression that different persons are treated differently. “Justice must not only be done, but be seen to be done as well. Every endeavour, therefore, should be made to resolve the prevailing legal uncertainty. The eligibility of members of parliament should be decided in accordance with one single and definite measure,” and not what amounts to double standard. Justice Isa believes that the court in the Panama Papers case clearly applied the strict liability principle, but it did not follow the strict liability rule in PTI chief Imran Khan’s disqualification case.
According to Justice Isa there are judgments of Supreme Court that apply the “principle or rule of strict liability” and hold that any non-disclosure or mis-declaration results in disqualification, giving the Panama Papers cases as examples. Interestingly, Justice Isa has elaborated the Panama Papers case proceedings into three parts by highlighting discrepancies in the judgments. He has also reproduced the particular portions of each judge on the Panama bench to highlight their conflicting views on the applicability of Article 62(1)(f) of the Constitution. He says once the facts of a case have been ascertained, the applicable law is applied to arrive at a decision. However, when the facts are clear, but different benches comprising the same number of judges take divergent views, the matter needs urgent resolution, he explained.
“Another question which requires determination is whether the matter of non-disclosure or mis-declaration is to be treated differently if the case is heard by the Supreme Court in its appellate jurisdiction (ROPA Section 67(3)), from a case heard by this court in its extraordinary original jurisdiction (Article 184(3) of the Constitution). There is yet another matter which needs to be considered and conclusively settled.”
According to Justice Isa, Article 184(3) of the Constitution states that only matters of “public importance with reference to the enforcement of the Fundamental Rights” can be attended to by the SC unilaterally. “When a High Court passes an order under Article 199 of the Constitution, it can be appealed before this Court (under Article 185 of the Constitution), but when this court exercises jurisdiction under Article 184(3), the order cannot be assailed in appeal. Precedents of this court have held that the right of appeal is a substantive right and not one of mere procedure,” he adds. Justice Isa observed that the April 20, 2017 Panamagate verdict says that Article 62(1)(f) of the Constitution must be declared by a court of law, which was expounded to mean a court of “plenary” or “competent” jurisdiction, suggesting the exclusion of the Supreme Court when exercising its extraordinary original jurisdiction under Article 184(3) of the Constitution.
“The question, therefore, arises whether a person can be disqualified under Article 62(1)(f) of the Constitution by this Court in the exercise of its jurisdiction under Article 184(3) of the Constitution. Another important matter which requires consideration is whether disqualification under Article 62(1)(f) of the Constitution is for the duration of the assembly, in respect whereof elections are held, or is permanent.” He also says that the scope of Article 225, which specifically deals with election disputes, also needs to be considered and whether on the principle of the ‘specific excluding the general’, this article excludes resort to Article 184(3) of the Constitution in respect of individual election disputes. And, to what extent, if at all, can an election dispute be categorised as a matter of “public importance” and which particular fundamental right stands infringed, which needs “enforcement”, he asked.
If one looks at Justice Isa’s overall performance as a judge, not many since inception of the Supreme Court could come up to his calibre. Except his fore-runners like Justice M.R. Kayani, Justice Dorab Patel, Justice Muhammad Haleem, Justice Safdar Shah, Justice Waheeduddin, Justice Bhagwandis, Justice Cornelius, Justice Constantine, Justice AKM Samdhani, Justice Fakhrudin G. Ebrahim and Justice Yaqoob Ali, judges starting from Chief Justice Muhammad Munir, Chief Justice Anwarul Haq, Justice Maulvi Mushtaq Hussain, Justice Naseem Hasan Shah, Justice Saqib Nisar, Justice Qayum and host of others allowed apex judiciary to be used to its ends for upholding Praetorian extra-constitutional interventions by pliable judges.
Any judge that showed his teeth was either defanged or subjected to fresh oath under provisional constitutional order or just sent back home. Eminent judges who tried to uphold rule of law, were hounded out. We have example of three Supreme Court judges from smaller provinces in Bhutto Sahib’s case, or Chief Justice Yaqoob Ali in Begum Nusrat Bhutto’s constitutional petition etc. On the other hand, there were judges like Justice Nasim Hasan Shah who confessed many years after having ordered his execution that Bhutto Sahib was wrongly hanged.
The much publicised but overly controversial reference moved in the Supreme Judicial Council through overt and covert leaks managed by powers that be against Justice Faez Isa for his indictment of the dark state in the Faizabad Dharna case and the case of killing of 70 lawyers in Quetta is likely to become an implosive event on June 14 when Supreme Judicial Council takes up the reference. If in the longer run an attempt is made to white wash the sins of omission and commission of the dark state by victimising Justice Faez Isa, it would be beginning of the end of Pakistan’s judiciary.
Though reputed to be a sober judge who did not believe in playing flamboyantly to the public gallery like his senior now retired former Chief Justice Saqib Nisar, Justice Isa has made his name by his forthright judgements. He got himself stuck as a thorn in the back of the dark state when he gave a judgement in favour of former premier Nawaz Sharif in the Hudaibiya Paper Mill case on merit rather than NAB’s allegations. By going against the desired spirit of the powers that be who were desperate to rush him in where even angels fear to tread the cricketer prime minister to play ball game with them.
Justice Isa has ever since come to be a permanent fixture in the news when retired CJP Saqib Nisar targeted him for his independence. He was also singled out for his landmark judgement on February 6 in the November 2017 notorious Faizabad sit-in case. Those of its proxies in the black coat brigade dubiously enrolled in bar associations were moved into action to launch a vilification campaign against Justice Isa. In his historic judgement Justice Isa had directed the Ministry of Defence to take action against officials who had blatantly violated their oath—no less than act of high treason.
Except the puppets on the chains of powers that be, there is a national consensus among bar associations in the country and members of legal fraternity to uphold justice and fair play and stand by Justice Isa in his defence of himself against ‘the usual dirty tricks’ operation resorted to by the dark state to demolish any one who stands in the way of its sinister machinations to monopolise power. The most serious insult to his injury was inflicted by powers that be when a rent-a-petitioner alleged that Justice Isa had been facilitating the activities of Indian intelligence Raw in Balochistan not knowing that Justice Isa is a son of a founding father of Pakistan– Barrister late Qazi Mohhammad Isa—a trusted lieutenant of the Quaid. It is, indeed, a tragic irony to see reference being moved by President Arif Alvi against a man enjoying impeccable reputation that once made him tweet as PTI leader that if an honest and upright person was needed to be governor of Balochistan, Justice Faez Isa was the choice!
Let the judges who will decide his reference and all those conspirators involved in it, be warned that they might cover up their sins of omission and commission, it will not happen so in the highest court of the Lord above who no power on earth can dictate, neither influence nor buy.
Disclaimer: Surkhiyan believes in freedom of expression and providing space for views and opinions from all sides. But we may not agree with everything we publish. The views expressed in this op-ed are that of the author and do not reflect the editorial policy of Surkhiyan. We do not assume any responsibility or liability for the same.