Daily Times

Many, espousing causes of freedom and justice, quote an apocryphal anecdote, attributed to Winston Churchill (1874-1965). The British Prime Minister during WW II is said to have told a questioner that Britain wouldn’t lose the war if its judiciary was dispensing justice.

This unconfirmed story is narrated to reinforce unwavering belief in the independence of the judiciary and the Rule of Law as cornerstones of a functioning democracy.

Tested on this litmus, Pakistan is, unfortunately, not likely to win any war – ever.

This is simply because even its highest court is not independent. It views violation of the Constitution with lenses of the Doctrine of Necessity, not the Rule of Law. It blatantly favours the strong, bypassing established legal frameworks. Its rulings show judicial overreach or selective interpretation. In short, it is devoid of impartiality, fairness, integrity, and credibility.

Having discussed Chief Justice Asif Saeed Khosa’s controversial rulings, we will now have a look at Chief Justice Qazi Faez Isa’s “historic” decisions.

Isa has probably been one of the most controversial figures in Pakistan’s judicial history due, mainly, to his “petulant” nature, “mercurial behaviour”, and “blind support” for Sharifs.

He is known to have fought against his fellow judges more than for the Rule of Law, civilian paramountcy or independence of the judiciary.

Since his induction into the Supreme Court in September 2014, he had an uneasy relationship with every Chief Justice – Anwar Zaheer Jamali, Mian Saqib Nisar, Asif Saeed Khosa, Gulzar Ahmad and Umar Ata Bandial.

CJ Qazi Isa is known to have fought against his fellow judges more than for the Rule of Law, civilian paramountcy or independence of the judiciary.

As Chief Justice (17 September 2023 – 25 October 2024), he forgave no one who had ever differed with him. He sought to silence every dissonant voice and was, as confirmed at his farewell dinner, immensely despised by his colleague.

Although his rival group within the Supreme Court was considerably weakened after the departure of Ijaz-ul-Ahsan and Syed Mazahar Ali Akbar Naqvi, five judges of the court that “vindictive” Isa had presided over for over a year, as a bull in China shop, expressed their contempt for him by boycotting even a ceremonial occasion, like his valedictory dinner.

He was inconsistent in his approach towards the military establishment. As a judge of the Supreme Court, he confronted it in cases like the Faizabad Dharna case, and the Quetta Commission Report.

It is generally believed that the 26th Constitutional Amendment could not have been adopted had he not supported it.

Isa’s judgments and public statements have often suggested a soft stance towards Sharifs, contrasting with his otherwise over-strict adherence to legal protocols in cases involving their adversaries.

The timing of Nawaz Sharif’s movements in and out of Pakistan during Isa’s tenure as Chief Justice has been quoted as circumstantial evidence of potential judicial favouritism.

Isa assumed office as Chief Justice in September 2023. And, Sharif, the absconder till then, returned to Pakistan the next month, to a rousing welcome at the airport.

Again, Isa retired as Chief Justice towards the end of October 2024 and Sharif fled to London yet again the next month.

This confirmed the perception that Sharif’s movements were strategically timed with Isa’s tenure, implying that he may have received favourable treatment during this period.

Isa has at times been seen as publicly criticizing the judiciary’s role in corruption cases, arguing that the judicial system should prioritize fairness and avoid appearing politically motivated.

However, his insistence on leniency and procedural justice often coincided with times when Sharif faced judicial scrutiny, leading some to interpret his comments as implicitly supportive of Sharif’s stance.

The most quoted such instance is the Hudaibiya Paper Mills case.

The case started during Pervez Musharraf’s regime in March 2000, when the National Accountability Bureau (NAB) moved a reference against Nawaz Sharif and his family on charges of money laundering. They were accused of setting up the mills as a front for siphoning off black money.

The case remained dormant for over a decade.

In 2014, when Musharraf was gone and Sharif was back at the helm, a 2-member bench of the Lahore High Court (LHC), comprising Justice Sardar Muhammad Shamim Khan and Justice Syed Shahbaz Ali Rizvi dismissed the reference.

In 2017, when Sharif was being hounded in the Panama Papers Case, the NAB sought to reopen the case.

The Supreme Court constituted a 3-member bench to hear the appeal. This bench comprised Justice Mushir Alam, Justice Qazi Faez Isa, and Justice Mazhar Alam Miankhel.

Isa is said to have dominated the proceedings and, allegedly, barred NAB lawyers from citing precedents that could weaken the Sharifs’ case. Reportedly, he went to the extent of warning them of contempt of court proceedings should they persist.

Eventually, the Supreme Court dismissed the NAB’s petition to reopen the case, citing procedural flaws and the prolonged delay in pursuing the case. The court essentially took a restrained approach, mainly on technical grounds.

To the contrary, Isa’s stance on the Faizabad Dharna case reflected a more activist and direct approach.

This case involved a 3-week-long sit-in by the Tehreek-e-Labbaik Pakistan (TLP), which paralyzed Islamabad in November 2017. Isa criticized the government, intelligence agencies, and even the military, calling for accountability regarding the role of state actors in supporting or allowing the protest to continue.

The judgment emphasized the principles of civilian supremacy, and the need to protect citizens’ rights from undue political or state interference. It showed a firm and more activist stance on upholding the rule of law, stressing the accountability of even powerful state institutions.

This contrasted with his stance in the Hudaibya case, focusing on procedural limitations, leaning towards technical restraint and caution, and sidelining broader accountability concerns in favour of a conservative judicial approach.

Isa’s inconsistent stance in the Dharna case raised eyebrows in judicial and political circles, with reservations about using it as a precedent in other cases. However, to be fair to him, that could also be due to his criticism of the country’s de facto rulers, rather than the legality or otherwise of the judgement.

Quite understandably, therefore, other judges were hesitant to cite the Dharna case as a precedent, given its “sensitive implications”.

Certain benches are reported to have informally cautioned lawyers against using it as a basis for arguments

The “maverick” Isa is remembered not only for a soft corner for Sharifs but also for deep-seated contempt for the Pakistan Tehreek-e-Insaf (PTI), and its leader, Imran Khan.

(To be continued)

The writer is a former diplomat, based in Canberra and can be reached at khizar_niazi@hotmail.com