Daily Times

As the nation worried about the Pashtun Tahaffuz Movement and the inflationary crisis in the wake of the International Monetary Fund deal, the government has managed to pull another rabbit out of its hat. A reference has been filed with the Supreme Judicial Council against Justice Qazi Faez Isa of the Supreme Court of Pakistan and two judges of the Sindh High Court, plunging the country into another crisis.

A letter, purportedly written by Justice Isa to the president, is doing the rounds in social media. It demands details of the reference and points out that not providing the accused a copy impinged on his right to due process.

The leak quickly became the lead story. Additional Attorney General Zahid F Ebrahim, the son of Justice Fakhrudin G Ebrahim, surprised few when following in the footsteps of his father he resigned from his office to protest against the filing of the references.

Supreme Court Bar Association President Amanullah Kanrani, who hails from Balochistan, has condemned the reference and defended Justice Isa. The Supreme Judicial Council has issued a notice for June 14 to Justice Isa. The issuance of notice has added fuel to the fire. Several opposition parties have strenuously rejected it and warned the government not to press it. A resolution against the reference has been adopted in the Senate.

Qazi Faez Isa is not the first superior court judge to have become a thorn in side of those wielding power

A newspaper report has claimed that the prime minister had himself taken interest in it and that the law minister had put the final touches to it. It says a former ‘PCO judge’ had extended a helping hand in the drafting of the reference. The reference was said to have been filed without the consent of the federal cabinet. The cabinet would later stamp its approval.

Mr Kanrani upped the ante by giving a hard-hitting speech. He warned the government of dire consequences in case the reference was not withdrawn.

Justice Isa then wrote yet another letter to the president again asking for details of the reference and a copy. The letter said he had been a regular taxpayer and that the three properties referred to in the allegations against him were owned by his wife and children who were not dependent upon him. He also raised questions about the conduct of the president and the prime minister.

The fact that there were eight petitions pending in the Supreme Court seeking review of the Faizabad sit-in case judgment handed down by Justice Isa is of great significance. One of the petitions filed by the Pakistan Tehreek-i-Insaf, accuses the court of bias.

Article 188 of the Constitution of Pakistan, 1973, and Order XXVI, Rule 8 of the Supreme Court Rules, 1980, provide that the same bench hears the review. Thus, the possibility of the reference having been driven by other than bona fide motive cannot be discounted.

It is not for the first time that an independent judge has become a thorn in the side of those who wield power and those who pull strings from behind the scenes. It is not for the first time that pressure is brought to bear on the superior courts. It is not the first time that the lawyers have raised their voices against an obvious attempt to trample upon the independence of the judiciary. It is not for the first time that the lawyers are starting a movement and political parties are ready to jump on the bandwagon. It is not for the first time that a government is fouling its own nest. It is not for the first time that the PTI has opened a can of worms.

Did the PTI not throw its weight behind the lawyers’ movement for the restoration of Justice Iftikhar Muhammad Chaudhry?

The history of superior judiciary in Pakistan has been steeped in politics. The doctrine of necessity has long been a recurring motif. Judgments rendered by the judiciary in political cases speak for themselves. Justice Cornelius wrote a powerful dissenting note in Molvi Tameez-ud-Din case (PLD 1955 FC 240), then in Dosso case (PLD1958 SC Pak. 533). In the former case, Justice Muhammad Munir laid the groundwork for the doctrine of necessity. He held that Governor General Ghulam Muhammad had the power to dissolve the constituent assembly. In the latter case, Justice Munir yet again fell back on the doctrine of necessity to justify martial law. That he became a minister in the Ayub cabinet following his retirement surprised few. In his book Highways and byways of life he called the judgments political.

The Supreme Court heard the murder case against Zulfikar Ali Bhutto in its appellate jurisdiction. The decision was four to three. The judgment is reported as PLD 1979 SC 53. The dissenting judges were Justice Dorab Patel, Justice Safdar Shah and Justice Muhammad Haleem. Justice Patel later refused to take oath under the 1981 PCO. Justice Shah was harassed into leaving the country. Justice Haleem rendered the famous judgment in Benazir Bhutto’s case in 1988 allowing her to contest the election. The case is reported as PLD 1988 SC 416.

Before he became the chief justice of Paksitan, Justice Jawad S Khwaja wrote a powerful dissenting note in the case of the 21st Amendment to the Constitution arguing that the very idea of military courts contravened fundamental rights enshrined in the Constitution.

Justice Qazi Faez Isa wrote a string of dissenting notes: from 21st Amendment to Houbara Bustard case to review of Sheikh Rasheed’s case.

Societies face moral death when they can no longer defend the voices of dissent. It is the heroic individuals who make the institutions and not the other way around.

The writer is a lawyer