SC fixes Faizabad sit-in review pleas for hearing

ISLAMABAD:

Just a week after taking the oath of his new office, Chief Justice of Pakistan Qazi Faez Isa has fixed review petitions against the Faizabad Dharna case judgment, wherein intelligence agencies --- the Inter-Services Intelligence (ISI), Intelligence Bureau (IB) and Military Intelligence (MI) -- and the army’s media wing, the Inter-Services Public Relations (ISPR), were directed not to exceed their constitutional mandates.

A three-judge bench of the apex court -- led by the chief justice himself and comprising Justice Aminuddin Khan as well as Justice Athar Minallah -- will take up the petitions on September 28 against the February 6, 2019 verdict.

The pleas were not taken up during the tenures of the last three chief justices, namely Asif Saeed Khosa, Gulzar Ahmed and Umar Ata Bandial.

Soon after the judgment in the Faizabad sit-in case in February 2019 was issued, unconfirmed news began to surface that the PTI-led government was planning to file a presidential reference against the outspoken Justice Isa.

During the hearing of Justice Isa’s case related to an inquiry into three UK properties in the name of his wife and children, his counsel Muneer A Malik told the apex court that the judge's observations in the Faizabad sit-in judgment -- 'an inconvenient truth' – prompted the PTI-led federal government to file a presidential reference against him.

He said eight review petitions were filed against the Faizabad sit-in case verdict by various political parties and organisations including the PTI, MQM-P, Election Commission of Pakistan (ECP), Pakistan Electronic Media Regulatory Authority (Pemra), IB and defence ministry (ISI).

"The review petitions were part of a coordinated exercise as all were saying that [the] observations in [the] SC judgment demoralised the armed forces," Malik added.

Justice Isa’s counsel further said the content of the review petitions filed by the PTI and MQM was the same.

However, the PTI again filed its review petition when the SC registrar’s office raised objection to its language.
Malik told the court that both the parties had accused Justice Isa of “misconduct” for giving his observations against the security establishment.

The ISI challenged the SC verdict in the Faizabad sit-in case, saying it would adversely affect the morale of the armed forces.

The ISI, through then Attorney General for Pakistan Anwar Mansoor Khan, contended that the court's observations would gather the impression that the armed forces and the premier intelligence agency were responsible for such “unconstitutional acts”.

It added that the verdict displaced the image of the armed forces defending the country against the menace of terrorism with that of those “mired in politics, manipulating elections, subverting free speech, muzzling the press and funding extremists”.

The ISI contended that the observation about the involvement of the armed forces in politics was vague as there was no evidence to back it up.

Likewise, it continued that there was no evidence to suggest that the ISI was involved with either the Faizabad sit-in, outcome of the 2018 general elections, abridgment of free speech, or intimidation of or censorship of the press.

The ISI maintained that observations and findings created the impression that the armed forces, in violation of their oath of office, have been found by the court to be involved in politics and other unlawful activities.

It added that the court’s observations created the perception that the armed forces were busy pampering rather than checking those who resorted to abuse, hate and violence.

“These are disturbing allegations unsupported by any credible and admissible evidence without identifying any person. Yet, the chiefs of armed forces of Pakistan have been directed to take disciplinary action against unnamed individuals who the court suspects of being so involved,” read the ISI’s review petition.

It is also contended that though the court had quoted examples of intelligence agencies of different countries, it did not note that the internal and external threats as well as challenges faced by them were very different.

The ISI stated in review plea that such remarks would be exploited by external foes in their propaganda war against Pakistan’s armed forces.

“Their [external foes’] politicians and media have in the past exploited such allegations to their advantage and will use the SC verdict to allege that the highest court of Pakistan is of the view that the armed forces are harbouring extremists,” the ISI added in its plea.

It continued that the armed forces could counter propaganda but their task becomes unenviable when the judgment of the highest court of Pakistan supplied ammunition to the enemies of the country.

“In such a situation, they [armed forces] cannot turn anywhere except to this court, an institution for which they have the highest respect for relief and succor,” the ISI plea stated.

The intelligence agency also submitted that to promote their own interests and further their designs, several hostile foreign intelligence agencies had created a “false perception” against Pakistan and its armed forces of aiding and supporting extremist organisations in the region.

“The impugned judgement; however, when read as a whole, it is submitted with great respect, unfortunately lends credence to this false narrative and has adverse implications for the security of Pakistan,” the plea continued.

The ISI also objected to the court's observations of halting TV transmission in the cantonment and defence areas.

“[The] armed forces have zero tolerance policy when it comes to violation of oath by their officers. An allegation that an office of the armed forces has violated his oath of office is always inquired into. If the allegation is not devoid of basis, disciplinary proceedings are initiated,” it maintained.

“However, no action is possible in the absence of any credible evidence and that too against unnamed officers for their alleged involvement in unparticularised incidents on unspecified date[s],” it added.

It is not clear as whether or not the review pleas were fixed after consultation with two senior-most SC judges.

The bench might adjourn the case until the final judgment on the Supreme Court (Practice and Procedure) Act 2023.
It will be interesting to see whether or not most of the parties will withdraw their review petitions.

Irfan Qadir, Ammanullah Kanrani, and Barrister Ali Zafar were representing different parties.

It has been learnt that a full court formed a committee comprising Justice Minallah and Justice Muhammad Ali Mazhar.

The body has been assigned the task of chalking out standard operating procedures (SOPs) for the live telecast of court proceedings.

There is a chance that live proceedings of Bench Number 1 will be aired soon.

Justice Isa, in his 2019 Faizabad Dharna judgment, had written that the Constitution emphatically prohibited members of the armed forces from engaging in any kind of political activity, which included supporting a political party, faction or individual. "The government of Pakistan through the ministry of defence and the respective chiefs of the army, the navy and the air force are directed to initiate action against the personnel under their command who are found to have violated their oath," read the 43-page verdict authored by incumbent CJP Isa.

CJ Isa in his Faizabad Dharna judgment had held that no one, including any government, department or intelligence agency, could curtail the fundamental right of freedom of speech, expression and press beyond the parameters mentioned in Article 19 of the Constitution.

He ruled that those who resorted to such tactics under the mistaken belief that they served some higher goal deluded themselves.

“Pakistan is governed by the Constitution ... Obedience to the Constitution and the law is the inviolable obligation of every citizen wherever he may be and of every other person for the time being in Pakistan," he wrote in his verdict.