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In a split 6 to 4 order, the Supreme Court accepted Justice Qazi Faez Isa’s review petition against earlier court order of sending his case to FBR. The minority dissenters included the head of the 10-member bench Justice Bandial supported by Justice Munib Akhtar, Justice Sajjad Ali Shah and Justice Amin.
The verdict has drawn accolades of the opposition and also criticism from many quarters. The praise of PML-N and PPP is obvious as it gives new ammunition to their narrative that the PTI Government wanted the anti-government judge removed and that it was acting on behalf of Pakistan’s establishment.
For critics, the verdict is problematic for two reason: namely, the merit and demerit of the case itself, and how it will implicate the Judiciary against the establishment by standing with a fellow judge who has demonstrated a clear anti-establishment bias in infamous Faizabad Dharna case and reinforced this impression during his trail by uttering pronouncements suggestive of apportioning blame on a part of establishment ie, ISI and its Chief Gen Faiz Hameed for TLP Dharna and other malaises in the country.
Also read: Justice Isa’s case – a judicial imbroglio
First, the common sense interpretation of the verdict is as follows: the Supreme Court judgment effectively barred any agency of the government to question a SC judge, his wife (wives) or children about the amount of funds taken by the family abroad, that it will have also consequence for the country’s standing, ie, violation of potential FATF anti money laundering (AML) rules unless the money trail was provided.
Veteran Anchor and Diplomat, Zafar Hilali, told this scribe, “Immunity granted to SC judges and family members for providing money trails could not have come at a worse moment. Pakistan had fulfilled 24 of the 27 requirements posited by FATF and certain to be off the grey list. What now? Told FATF disallows exemptions?”
Secondly, the verdict has a subtle message: the post-QFI-verdict Judiciary is firmly standing with a fellow unorthodox anti-establishment Judge and has thrown a gauntlet to the establishment in the context of the Faizabad Dharna case.
The Faizabad Dharna case effectively charge sheeted the establishment hence opening up a fault-line between Judiciary and the establishment. The case can be fixed any time by the current Chief Justice.
Then the same bench, ie, Justice Esa and Justice Musheer Alam, will hear –as per precedent– the case and will likely drag the then establishment through courts. For example, It clearly can direct the government to take action against the then DGC and the incumbent DG ISI, Gen Faiz Hameed for allegedly supporting the TLP Dharna against the then government of Nawaz Sharif. This prospect means we may see a potential showdown of the Judiciary with the establishment.
Already the impression is gaining traction that Judiciary is hellbent to grab more space at the expense of the establishment. Another is, notwithstanding, it never gets angry when people spend their whole life waiting for justice and they enjoy months of summer vacations just like school kids; and are unlikely to answer why lacs of cases are pending for years in our courts.
But, If Judiciary loses balance in cases and its fellow judges give political statements like opposition against the estb, then we have a problem: already, the establishment feels squeezed in by Judicial overreach.
If Judiciary dominates and denies space to the establishment as de-facto reality and threatens it being a centre of gravity, this dynamic will lead to a revision of policy resulting in a push back and worse a collision of the two powerful institutions.