With challenges ahead, the jury's still out on CJP Isa's legacy

While some hail CJP's tenure for its historic strides, others remain sceptical about his effectiveness

Hasnaat Malik April 14, 2024
Chief Justice Qazi Faez Isa. PHOTO: FILE


Chief Justice of Pakistan (CJP) Qazi Faez Isa finds himself in the hot seat as he enters the remainder of his term, grappling with a slew of challenges amid a mixed bag of reviews regarding his performance over the past six months.

While some hail his tenure for its historic strides, others remain sceptical about CJP Isa's effectiveness, who is set to hang up his robes on October 26.

From the get-go, CJP Isa set the tone by convening a full-court meeting on his first day, where the majority of judges gave the nod to live-streaming court proceedings.

Flexing his authority judiciously, he streamlined bench formations and gave precedence to public interest cases with the backing of the Supreme Court Practice and Procedure Act 2023, effectively clipping the wings of discretionary powers of the CJP.

Furthermore, the lifetime disqualification of political titans such as Nawaz Sharif and Jahangir Tareen under Article 62 (1) (f) of the constitution has been abolished.

The SC chimed in on the presidential reference, revisiting the murky waters of ex-prime minister Zulfikar Ali Bhutto's murder case while ousting SC judge Mazahar Ali Akbar Naqvi over alleged misconduct.

Meanwhile, the gavel came down hard on ex-army chief Pervez Musharraf's conviction.

Through it all, CJP Isa notably held the reins of suo motu jurisdiction with integrity.

Observers note the SC, under CJP Isa's helm, has been focused to right the wrongs of the past.
However, the superior judiciary showed judicial restraint in navigating the turbulent waters of clashes between powerful circles and the Pakistan Tehreek-e-Insaf (PTI).

Regarding the future challenges of CJP Isa, Advocate Abdul Moiz Jafferii said, in one sentence: That the CJP’s greatest challenge for the next six months is the same as his greatest challenge for the past three months: to recover from the decision given on January 13.

It's noteworthy that on January 13, a three-judge bench headed by CJP Isa declared the intra-party elections of PTI illegal, resulting in the party being stripped of its election symbol. Later, PTI was unable to secure reserved seats post-election.

Jafferii further elaborated that the CJP’s biggest challenge for the rest of his remaining tenure is to shed the perception that his court has assisted the incumbent coalition government both by knocking out the most popular party in the country on a technicality and by allowing the government a wide berth to operate.

"Another challenge will be to take the IHC judges’ allegations towards a conclusion which strengthens the institution and doesn’t just look like a self-serving exercise which ends with letting the executive do what it wishes,” he added.

Jafferii opined that if the Supreme Court could write to the high courts to ask what to do next, it could also have asked them if they had any experiences of establishment interference of their own to convey.
"This court looks like it’s either stuck in the past, with a focus on the Bhutto sentence correction or the fixation with the 2018 election and government-related issues, or it seems to be focused on moving on to the future.

Jafferii suggested that what might be lacking is justice in the present moment, precisely when it is most needed and “when it is actually the job of this Supreme Court”.

Erosion of judiciary’s standing

Barrister Asad Rahim Khan noted that the recent spate of SC decisions, as well as near-complete inertia in response to the IHC judges’ letter, was eroding the judiciary’s standing each day.
This chief justice would be better served acknowledging that citizens’ fundamental rights have all but collapsed, rather than pass statements about getting out of the kitchen.

He further said that another challenge was that the trash fire of a law was the Practice & Procedure Act has so far only succeeded in suspending the landmark military courts judgment.

"At no point since 2009 has confidence in the judiciary been this low; so far, it’s not quite been this chief justice’s priority to restore even a fraction of it,” he added.

"The challenge is to build consensus within 17 Judges of the SC. To overcome poisonous divisions. To renew faith in shared goals of achieving Jinnah’s Pakistan which we all dream of", Advocate Zahid F Ebrahim opined.

Legacy and ‘imposed battles’

Advocate Umer Gilani believed that Justice Qazi Faez Isa assumed office of CJP at a moment in our judicial history when all state institutions, including the courts and the armed forces, were deeply fractured, with pro-Imran and anti-Imran camps fighting an existential battle.

"In such an environment, there was probably nothing that CJ Isa could have realistically done to fully placate his pro-Imran critics. However, what he can, and should do is to set up a reform agenda of his own. The Supreme Court can, and should, play a proactive role in the reform of the lower courts to reduce delays in contract enforcement and in the punishment of crime.

The court can also step up in a major way for the enforcement of the fundamental rights of economically deprived segments of society such as coal miners, bonded labourers, "servants" of autonomous bodies locked in exploitative relationships, losses to public exchequer inflicted by blocking of public highways and internet signals and losses inflicted by the negligence of state officials.

Gilani further stated that the chief justice should pick up a few battles of his own; if he doesn't seize the initiative, his legacy will be defined completely by the battles imposed on him by his critics.

Former additional attorney general Tariq Mahmood Khokhar says that the CJP’s challenge is to take a step back from the precipice of constitutional, democratic and judicial ruins.

"It is bleeding obvious that the six judges are crime victims; that the PTI election symbol case diminished our nascent democracy; that mainstream media is controlled; that we have unrepresentative governments; that the rule of law is flexible; that the Supreme Court is fractured again; that our institutions lack legitimacy and public confidence; and, that the trichotomy of powers is a mere illusion now,” Tariq Khokhar said.

It has also been learned that a government committee is deliberating on finalising a judicial package, expected to be unveiled shortly after the Eid holidays.

Despite the government's official denial of media reports suggesting a constitutional amendment to impose a fixed three-year tenure for the office of the CJP, debates persist on this proposal.

Both PTI and the Professional Lawyers Group have jointly decided to oppose any such notion, casting serious doubts on the recent election results.

The unfolding scenario has prompted curiosity regarding whether the current CJP stands to gain from such a governmental initiative and what the reaction of other superior court judges will be.

During CJP Isa's tenure, the FIA issued notices to journalists and other social media activists for their criticism of the January 13 order. CJP Isa has consistently expressed concern about the use of social media. His comments against social media could potentially be exploited by influential circles to stifle dissenting voices.

None of CJP Isa's actions have displeased the current government. However, the PTI is expressing disappointment over his perceived inaction regarding the party's female workers who remain incarcerated.

The PTI has already filed an appeal with the Supreme Court regarding the issue of election rigging. It has also contested the Peshawar High Court's decision regarding the denial of reserved seats to the PTI. The suo motu case involving six IHC judges will be heard by the full court on April 28.


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