Justice Qazi Faez Isa and the expectations

Amid mounting expectations of the very many disenchanted with the prevailing social and political system, Justice Qazi Faez Isa starts off his stint as Chief Justice of Pakistan. The actions taken so far by the top judge — a 1300cc car in personal use, reduced security staff, live telecast of a high-profile case — are a good beginning. But much remains to be seen.

Hopes make sense as Justice Isa is known by his bold judgments like in the Memogate Commission; Quetta Bombing Commission; Audio Leaks Commission; suo motu case on Hazara killings; Faizabad dharna case; NAB vs Hudaibiya Paper Mills case, etc. All these judgments and findings — except for the one related to Memogate which is considered controversial by many — aim to contain the powers of the executive within the parameters of law, irking the most powerful. In few of these cases he even used suo motu powers and adopted an unconventional approach.

Judgments on Faizabad dharna and NAB vs Hudaibiya Paper Mills cases are among Justice Isa’s most significant ones.

In Faizabad dharna case, Justice Isa declared that the protest violated citizens’ fundamental rights and that the government failed in its constitutional duty to protect citizens and maintain public order. He declared the agreement brokered by armed forces that ended the protest as illegal and unconstitutional, and questioned the dubious role of state agencies, including the ISI, in failing to counter the threat of extremism posed by TLP and others. The honourable judge also declared that spy agencies should never be perceived to support a particular political party. The judgment highlighted the constitutional role of armed forces and stressed that the honour and esteem of those who sacrifice their lives for the country should never be undermined by the illegal actions of a few.

In the Hudaibiya Paper Mills case, Justice Isa declared that the NAB’s petition was filed after a delay of 1,229 days — well beyond the 60-day limit. Stressing the importance of fundamental rights, like a fair trial and due process, he refused to condone the delay, affirming the principle that individuals cannot indefinitely await a prosecuting agency’s discretion, which could turn prosecution into persecution.

All in all, Justice Isa’s judgments portray his unwavering commitment to justice, constitutional supremacy and rule of law. However, his real test has begun now that he has assumed the role of the Chief Justice of Pakistan.

The Chief Justice derives his authority from the Constitution and statutes, and cannot go beyond. In this respect, the most striking feature of the Constitution of Pakistan is Article 184 (3) under which the top court can act on its own or on a plea from an individual in case of violation of the rights mentioned in the Fundamental Rights Chapter.

Today, the country is faced with the lack of enforcement of fundamental rights and adherence to the rule of law and fair trial in relation to: the missing persons, including journalists and political activists; military trial of civilians; disenfranchisement of the electorate to elect their representatives, etc.

Interpretation of the Constitution — right now, in the context of the mentioned issues — is the most fundamental duty of the Supreme Court, being the guardian of the Constitution. Hopes are there that under Justice Isa’s leadership, the top court will ensure enforcement of fundamental rights and interpret Constitution in such way that the executive will have no space to deprive the electorate of their choice of government.

To sum up in the words of Justice Mansoor Ali Shah, “Laws in a democracy, under our constitutional framework, must protect and preserve equality, tolerance, life, liberty, privacy, dignity and freedoms of thought, expression, belief, faith, and worship. Laws represent the morality of a nation, the aspiration of its people and not the fiat of the few. Rule of law is at its finest when people are at the centre and it is structured on a rights-based model.”

How to ensure rule of law and achieve this target constitutes the litmus test for the Supreme Court under Justice Qazi Faez Isa.

Published in The Express Tribune, September 29^th, 2023.

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