A tribute to Justice Qazi Faez Isa

.. by Barrister Asad-Ul-Mulk

“You have sat too long for any good you have been doing lately. Depart, I say; and let us have done with you. In the name of God, go!” It is in those words that Oliver Cromwell addressed the Rump Parliament in 1653. And perhaps Chief Justice Qazi Faez Isa deserves a parting rebuke no less scathing.

Qazi Faez Isa’s judicial tenure on the Apex Court can be divided into two parts. The first being the part where he was a mere Judge of the Supreme Court, and the second being the part where he was the Chief Justice. The two parts of Qazi Faez Isa’s career contradict each other.

As a Judge of the Supreme Court, Qazi Faez Isa stood for everything that ought to be cherished in a Judge; integrity, independence and impartiality. As a Judge, Qazi Faez Isa, faithfully adhered to the Constitution, the rule of law and dispensed justice “without fear or favor, affection or ill-will”. This is reflected by his findings in the Quetta Inquiry Commission. By his powerful dissent in District Bar Association, Rawalpindi v. Federation of Pakistan in which he scorned at the prospect of ‘civilian trails’ by ‘military’ Courts. By his authoritative ruling in Khalid Humayun v. NAB in which he depreciated the practice of ‘plea-bargain’ and emphasized the need for NAB to hold ‘corrupt officials’ to account by prosecuting them. By his order in Action Against Distribution of Development Funds to MNAs-MPAs by Prime Minister in which he took judicial notice of ‘bench fixing’ and the distribution of development funds before elections. By his bold decision in the Faizabad Dharna Case in which he ruled upon the limits of the fundamental rights of freedom of ‘movement’, ‘assembly’ and ‘speech’ and held the ‘intelligence agencies’ operating under the aegis of the Pakistan Army to account. By his dissent in Shafqat v. The State in which he stated that while the sentence of a convict could be brought to an end, the stigma of conviction could not be removed by entering into a compromise with the legal heirs of the victim. He appreciated that the whole enterprise of compounding offences, operates to the advantage of the powerful in the society, and the detriment of the weak, the feeble and less privileged. By his ruling in Salamat Mansha Masih v. The State through which he took note of the abuse of ‘blasphemy laws’ and acquitted the convict. By his ruling in the Mubarak Sani Case in which he recognized the right of Ahmadis to practice their faith, as they pleased, in the privacy of their home. By his judgment in Adeel Rasheed v. The State in which he made use of the seldom resorted to ‘community service order’. By his judgment in Muhammad Abbas v. The State in which he depreciated the use of the term ‘honour killing’ as it purported to clothe the perpetrated crime in a fabric of legitimacy. By his numerous rulings recognizing and reinforcing women property rights, including property rights acquired through inheritance; such as in the case of Muhammad Rafiq v. Ghulam Zohran Mai, Laila Qayyum v. Fawad Qayyum and Munir Hussain v. Riffat Shamim.

As a Judge of the Supreme Court, for his bold and forthright rulings, Justice Qazi Faez Isa became the subject of persecution as well. He had to fight off a Presidential Reference and later became embroiled in a dreadful clash with the then Chief Justice Umar Atta Bandial, particularly over ‘bench fixing’ and the silencing of ‘dissenting voices’ within the Supreme Court. Qazi Faez Isa was a proponent of structuring discretion, eliminating monopoly over power, especially administrative monopoly of the Chief Justice and harboring institutional collegiality within the Supreme Court.

As the Chief Justice, Qazi Faez Isa’s judicial tenure represented the antithesis of everything he stood for as a Judge. In the Practice and Procedure Act Case Qazi Faez Isa, to his credit, formed a full Court to rule upon the constitutionality of the said Act. He wrote the decision for the majority, and in upholding the validity of the Act, ended the monopoly of the Chief Justice regarding bench formation, and thus bench fixing. He also formed larger benches to take up the Presidential Reference Regarding the Conviction of Bhutto and High Treason Page 2 of 5 Case of General Musharraf, though in the latter case it was actually Justice Syed Mansoor Ali Shah who authored the damning rebuke of Pakistan’s military dictator, and confirmed the validity of the symbolic death sentence which was handed to General Musharraf (who had by then died).

Thereafter, things went downhill. Firstly, while jurisprudentially averse to military Courts, as Chief Justice, Qazi Faez Isa in association with then Senior Puisne Judge Sardar Tariq Masood, did not become part of the bench in the Military Court’s Trial Case, instead the case was fixed before a group of Judges with whom Qazi Faez Isa did not enjoy very cordial relations. Analysts argued that the composition of the bench was concocted, in the hope that should the trial of civilians accused of attacking military installations on 9th May be allowed in military Courts, then the reputation of the Judges who were part of the bench would stand tarnished forever, and conversely should the bench rule that such ‘military trail’ of ‘civilians’ was unconstitutional, then it would attract the indignation of the powerful Pakistan’s Army towards the members of the bench. Thus, the members of the bench were said to be ‘caught between the devil and the deep blue sea’. The bench showed tremerndous courage and through a 4-1 decision, declared the trial of civilians in military Courts to be unconstitutional. When intra-court appeal was preferred in the case, Chief Justice Qazi Faez Isa again chose not to part of the bench, and in association with Justice Sardar Tariq Masood fixed the case before another bench of conservative Judges who immediately suspended the earlier judgment, and allowed military trials of civilians to continue.

When 6 Judges of the Islamabad High Court wrote a letter to the Supreme Judicial Council, alleging the exertion of pressure on them through various means by ‘intelligence agencies’ in an attempt to influence their decisions, Chief Justice Qazi Faez Isa, as the Chairman of the Supreme Judicial Council shrugged at the prospect. At one point, he also equated the remonstration of the Judges with the propaganda of ‘Joseph Gobbles’ the propaganda minister of Hitler. Although a larger bench of the Supreme Court was formed to probe the complaints, but Qazi Faez Isa as the head of the bench was adamant to undermine any meaningful inquiry from the outset. The result – nothing substantial became of the case. The Chief Justice of the Lahore High Court Malik Shehzad Ahmad Khan was promptly elevated to the Supreme Court, when he took notice of ‘alleged meddling’ in the judicial affairs in Punjab, and appeared on course to confront the ‘intelligence agencies’ with the complaints against them emanating from within the judicature.

Instead of displaying magnanimity and casting away any indignation he may have had towards the Pakistan Tahreek-e-Insaf, which had while in power, filed a motivated Presidential Reference against him, Chief Justice Qazi Faez Isa embarked on an elongated quest to settle scores with his former adversaries.

Under Chief Justice Qazi Faez Isa’s watch Pakistan witnessed one of its most controversial elections. Tens of thousands of criminal cases were lodged against the workers and candidates of one particular political party. Many of these workers and candidates upon getting bail from Court one minute, would be picked up by law enforcement agencies the next minute, and be implicated in a new or fresh case. When the High Courts attempted to adopt a dynamic approach to the situation, their rulings were promptly reversed at the Supreme Court level by Chief Justice Qazi Faez Isa or other judges who subscribed to his conservative philosophy. The result – the judiciaries response at the top level, to this abuse of the prosecutorial powers of the state was pedantic and never dynamic.

Less than a month before the general elections, a bench of the Supreme Court lead by Chief Justice Qazi Faez Isa in The Bat Case declared that that the Pakistan Tahreek-e-Insaf was ineligible for the ‘bat symbol’, a symbol which the Pakistan Tahreek-e-Insaf had come to be associated with. The judgment had been written in such an obscure way that the Election Commission of Pakistan interpreted it as having rendered the Pakistan Tahreek-e-Insaf ineligible to contest elections as a political party. The result – candidates of the Pakistan Page 3 of 5 Tahreek-e-Insaf were forced to contest elections as ‘independent candidates’. And consequently, following the elections, the largest party in the National Assembly was not any regular political party, but composed of independent candidates. Who were these independent candidates? – They were the candidates of Pakistan Tahreek-e-Insaf who by virtue of the Supreme Court’s decision in The Bat Case, and the folly of the Election Commission, prevented to contest on their party’s platform, and forced to contest as independent candidates. This constitutional mistake was expressly admitted by Chief Justice Qazi Faez Isa in the Reserved Seats Case when he signed the dissenting note of another fellow Judge admitting “However, this [The Bat Case] did not mean that affiliation of the candidates with PTI stopped or that PTI stopped being a political party to contest election”. However, Qazi Faez Isa frowned at the prospect of not allowing the folly of a constitutional body to be undone through a judicially dynamic approach. When the British High Commissioner to Pakistan Ms. Jane Marriott criticized The Bat Case decision, Chief Justice Qazi Faez Isa in an unprecedented move had the Registrar of the Supreme Court write a letter to the British High Commission acclaiming The Bat Case judgment, and directing a diatribe of political accusations against the British Government ranging from its role in; the overthrow of Mohammad Mossadegh in 1953 to the Balfour Declaration and what not.

In the Reserved Seats Case the majority decision of 12th July authored by Justice Syed Mansoor Ali Shah sought to undo the constitutional mistake on part of Election Commission, and restore to the Pakistan Tahreek-e-Insaf the seats which ‘but for the constitutional mistake’ were to go to the said party. The decision cost Justice Syed Mansoor Ali Shah the Chief Justice’s position, and Chief Justice Qazi Faez Isa played a pivotal role in encouraging and allowing the 26th Constitutional Amendment to take place.

Midway during his tenure as Chief Justice, Qazi Faez Isa had begun to harbor a craving desire for an extension. One which he could not effectively conceal. When print and electronic media attributed a statement to him wherein he had dispelled the possibility of him seeking an extension in his tenure, he was quick to issue a written clarification reinforcing his desire to avail one should one be offered. Since an extension could not be given to the Chief Justice without amending the Constitution, Qazi Faez Isa embarked on a protracted pursuit to enable the Federal Government to effect a ‘constitutional amendment’. First, Chief Justice Qazi Faez Isa fought tooth and nail in the Reserved Seats Case to give the Pakistan Tahreek-e-Insaf a technical knockout, and hand the corresponding reserved seats to the ruling coalition. When he did not succeed in this enterprise (as he ended in the minority), he made it apparent that there were others means to procure the necessary numbers in the Senate and National Assembly i.e. by reinterpreting Article 63-A of the Constitution, but his hands were tied due to the Practice and Procedure Act as Justice Syed Mansoor Ali Shah and Justice Muneeb Akthar, the other two Judges on the Committee did not want to list the Article 63-A Case before Qazi Faez Isa’s retirement, whom they viewed as agenda driven.

As a riposte, the President enacted the Practice and Procedure Amendment Ordinance, 2024 and gave effective control of bench formation back to the Chief Justice. It may be noted that as a Judge, Qazi Faez Isa had always stood up against the monopolization of bench formation by the Chief Justice and wanted his powers diluted. It was one of the first principle which he affirmed in the Practice and Procedure Act Case. But when the Practice and Procedure Amendment Ordinance, 2024 restored to him, his previously relinquished powers, he without blinking an eye, seized the power with both hands and immediately denotified Justice Muneeb Akthar and replaced him with Justice Amin-ud-Din Khan (who was number five on the seniority list and jurisprudentially aligned with Qazi Faez Isa). Together they immediately listed the Article 63-A Case judgment, which had closed the door to horse trading in Parliament for ‘review’, and again had it fixed before a bench, the leaning of which was clear from the outset. The judgment in review once again opened the doors for floor crossings, and gave to the Federal Government the opportunity to coerce or Page 4 of 5 induce members of a political party to abandon party directions and vote. This conscious or unconscious connivance of Chief Justice Qazi Faez Isa, gave to the Federal Government the hope and encouragement to table and pass the 26th Constitutional Amendment. The purpose behind the 26th Constitutional Amendment was to prevent Justice Syed Mansoor Ali Shah from becoming the next Chief Justice of Pakistan, as he was seen as being adamant in implementing the Reserved Seats Case decision and awarding to PTI the corresponding reserved seats. The fact the Justice Yahya Afridi is a Judge possessing integrity in his own right, does not detract from the ulterior motive of the Federal Government in introducing the 26th Constitutional Amendment.

Meanwhile, as constitutional amendments require super majorities, in Pakistan’s case twothird majority in Parliament. This necessitated the support of Maulana Fazal-ur-Rahman in passing the amendment. Maulana Fazal-ur-Rahman, catering to his political base, had previously stirred a commotion in respect of the Mubarak Sani Case. It has been suggested by many analysts that giving in to bigotry, fanaticism and to amply his own chances of receiving an extension, Chief Justice Qazi Faez Isa expunged the liberal portions of his ruling in the Mubarak Sani Case by entertaining effectively a second review, a concept unknown to our jurisprudence.

The live streaming of Court proceedings was certainly a progressive move which Chief Justice Qazi Faez Isa pioneered, and credit must be given to him for that. The whole idea behind live streaming being the increase of accessibility, transparency and openness in judicial proceedings. Qazi Faez Isa, even as a Jude, and more so as the Chief Justice, was erratic in the way and manner in which he conducted proceedings. The live streaming of Court proceedings exposed the anger, the spite, the vendetta, the contemptuous language and the loss of patience which were the attributes of the Qazi Court. He was scornful and condescending, not just towards the lawyers and the litigants, but also towards his fellow Judges on the bench. The audio recording of a meeting of the International Islamic University in which Qazi Faez Isa was participating bear testament to how foul and petty the Chief Justice could become, insisting at a high level meeting to give certain officials a public dressing down, and urging other participants to join him in the act.

In one of his final dissenting note, Chief Justice Qazi Faez Isa did not hesitate to take one last jibe at his fellow Justice Syed Mansoor Ali Shah painting the latter as a partial, compromised and scheming Judge lacking integrity. Justice Shah is anything but. His [Justice Shah’s] fault – handing down the Reserved Seats Case decision which although could not avert the 26th Constitutional Amendment but embroiled Chief Justice Qazi Faez Isa in a frenetic effort which exposed the latter’s unsuitability even in the eyes of the Federal Government which was otherwise contemplating retaining him. The original plan which the 26th Constitutional Amendment was designed to execute was the creation of either a ‘Federal Constitutional Court’ or an increase the retirement age of Judges of the Supreme Court by setting the sealing at the age of 68. Both options would have benefited Chief Justice Qazi Faez Isa, as he was the favorite to become the Chief Justice of the Federal Constitutional Court, and in the alternatively scheduled to hold on to the Chief Justice of Pakistan’s position till 2027.

The 26th Constitutional Amendment tilts the pendulum of power heavily in favour of the executive at the expense of the judiciary, and tramples upon the separation of powers and doctrine of checks and balances. The fact that the new Chief Justice Yahya Afridi is a noble man possessing integrity is a relief, but it does not detract from the fact that amendment contains inherent mischief which needs to be quelled through a herculean judicial effort.

Chief Justice Qazi Faez Isa’s judicial career comes to a sad and woeful end. Every value he stood up for as a Judge, he undermined as the Chief Justice. When he donned the robes of the Chief Justice he pledged to promote collegiality, and bring an end to the unfettered powers of the Chief Justice. It seemed that this would be his legacy and his greatest Page 5 of 5 achievement. As his tenure as Chief Justice comes to an end, he has left the Supreme Court fractured and divided, and leaves behind a tale of bench fixing of his own. In the end, Chief Justice Qazi Faez Isa’s longed for integrity, independence and impartiality for he had become a hostage of his own judicial ambitions.

In concluding this essay, it would be befitting to recite a few lines from The Tenure of Kings and Magistrates (1650) by John Milton, wherein the English poet writes about the prospect of worthy Judges turning unworthy during the course of their career. These Judges are not unworthy from the start, they start off with noble intentions and with a commitment to serve, but along the way, they are stroked by power, politics, a feeling of self-righteousness and the craving need for self-preservation – which then clouds their mind and transforms them into something other than what they originally were, which alas is the case of Justice Qazi Faez Isa as well. Milton wrote “These for a while governed well, and with much equity decided all things at their own arbitrement: till the temptation of such a power left absolute in their hands, perverted them at length to injustice and partialities”. .. Barrister Asad-Ul-Mulk, 27 Oct 2024