CJP Isa faces heat over controversial ruling

Defends his rulings in PTI's intra-party elections in letter to British High Commissioner

ISLAMABAD:

Chief Justice of Pakistan Qazi Faez Isa is once again in the midst of controversy as he defends the apex court’s January 13 ruling, which declared the intra-party elections of Pakistan Tehreek-e-Insaf (PTI) as unlawful, leading to the party being stripped of its election symbol in the recent general elections.

Acting on CJP Isa’s directives, the SC Registrar penned a letter on May 3 to British High Commissioner, Jane Marriott.
The response was prompted by Marriott's remarks at the Asma Jahangir Conference, where she emphasised the importance of democracy, elections, and the necessity for open societies.

It's worth noting that CJP Isa himself authored the controversial January 13 ruling, which has been criticised as one of the worst judgments in recent memory, severely impacting the credibility of the February 8 general elections.

The ramifications of this ruling were vast and far-reaching. PTI was unable to secure reserved seats, and winning candidates who had initially secured victory on PTI tickets faced no repercussions under Article 63 A of the Constitution when they switched allegiances.

However, the SC's letter argues that elections in Pakistan were legally required to be held within 90 days of the completion of the National and provincial assemblies' tenure.

Yet, due to discord between the president and the Election Commission of Pakistan (ECP) over who holds the authority to announce the election date, this deadline was not met.

“The matter was resolved in just 12 days by the Supreme Court, and general elections were held throughout Pakistan on 8 February 2024," the letter said.

The letter skirts the issue of the elections' fairness. In the wake of the January 13 order, PTI's legal team decided to withdraw their contempt petition against another SC order directing the Election Commission of Pakistan (ECP) to level the playing field for the party.

Whispers in the corridors suggest that PTI candidates were hamstrung in their campaigning during the elections. Many PTI leaders found themselves either behind bars or on the run.  Since the May 9 incidents, pressure has mounted on PTI leaders to jump ship and join the Istehkam-e-Pakistan Party (IPP).

Moreover, the judiciary, with CJP Isa at the helm, has been unable to spring PTI's female members from custody, where they remain as under-trial prisoners.

The SC also remained silent on the banning of PTI's gatherings during the election campaign. The returning officers (ROs) were appointed from the civil administration, raising serious questions about their conduct.

The SC Registrar states in the letter that many candidates faced lifetime bans in previous elections because they were not considered honest and trustworthy ('sadiq' and 'ameen') by the top court. However, a larger seven-member bench overruled this earlier decision, deeming it non-compliant with the Constitution and the law.

The letter does not specify who benefitted most from this verdict. Notably, the SC judgment ended the lifetime disqualification of Mian Nawaz Sharif and Jahangir Khan Tareen.

Earlier, there was a clash between Nawaz Sharif and powerful circles following the Panamagate scandal. He was disqualified not only as an MNA but also as the head of his party, and subsequently, he was sent to jail.

However, after mending his relationship with these powerful circles, Nawaz Sharif managed to secure relief in all his cases.

Currently, the relationship between Imran Khan and the security establishment is tense. Superior court judges are now facing difficulties in granting relief to Imran Khan in any matter. This tension was evident in the Islamabad High Court, where six judges wrote a letter to the Supreme Judicial Council about the interference of agencies in judicial functions.

Likewise, the SC letter defending the January 13 order has stated that the law enacted by parliament (Elections Act, 2017) requires democracy within political parties via the holding of periodical intra-party elections to forestall autocracy or even dictatorship within them.

“To ensure compliance with this democratic principle the law stipulates that if a political party does not hold intra-party elections, then it would not be eligible for an election symbol. A political party (which had itself voted in this law) did not hold the mandated intra-party elections. The Supreme Court reiterated what the law stipulated,” says the SC letter.

"Therefore, your Excellency's criticism about this decision, with utmost respect, was unjustified.”

It is worthy to mention that it was upon the current CJP’s assumption of office that cases of public importance began to be broadcast live for the first time in Pakistan's history.

“This allowed the public at large to view Supreme Court proceedings in their entirety, with transparency in regard to how decisions came to be made. The decision regarding intra-party elections and party symbols was one of many to be broadcast live as such."

The letter said that it was gratifying that the British high commissioner had repeatedly stressed the importance of 'open societies' saying that they were necessary for vibrant democracies. “You will be pleased to learn that the Supreme Court has recognised the right to information and vigorously applied it to itself."

There is no doubt that CJP Isa has initiated live streaming of court proceedings. However, he still exercises discretion regarding which cases are live-streamed.

For instance, there was no live streaming during the last two hearings of the journalists' harassment case. Similarly, when PTI chief Imran Khan appeared for the NAB law amendments case, live streaming was not allowed. There is still no clarity about the SOPs for live-streaming court proceedings.

It is also noteworthy that X was banned in Pakistan after the general elections, yet the Supreme Court did not take notice. Recently, PEMRA issued a notification banning the broadcast of court proceedings on TV channels.

Journalists received notices from the FIA Joint Investigation Team (JIT) over their criticism of the January 13 order.

One journalist, Asad Toor, was imprisoned for three weeks on false charges.The SC letter emphasises that continuing the violent undemocratic errors of the past condemns both present and future generations, perpetuating cycles of violence."Let us embrace truth, which sets us free.

Should the overthrow of the elected democratic government of Mohammad Mossadegh in 1953, to capture Iranian oil, not be revealed after over seven decades of cover-up? Will this not prove therapeutic for the perpetrator and the victim? Will it not engender trust, possibly friendship, and peace?”Ceding to what it described as 'Jewish Zionist aspirations', the British government wrote to an individual, its own citizen, on November 2, 1917, conveying its decision to establish a settler-colonial state.

“This decision was not voted upon by the people of the area who were impacted by it, nor even by your own. The British government, and not Parliament, unilaterally decided it. The Balfour Declaration became the foundation on which an ethnic state was established,” the letter said.“Those who had always lived there were excluded from this ethnic state; contained in ghettos, humiliated, deprived, brutalised, maimed and killed."

"Let us step back from the precipice of settler-ethnic superiority. Deaths of thousands of children and many thousands more innocents may unjustifiably come to define a people, which would be an abomination. Let us all stand up and be counted for equality, peace and humanity.”

"Let us be honest and acknowledge past mistakes in the spirit of openness, advocated by your Excellency. And, jettison the unholy concept of ethnic superiority, and its concomitant an inferior humanity."

"The Supreme Court of Pakistan has acknowledged the mistakes made in its past, addressed them in detail, and taken steps to ensure that they are not repeated.

Since the Government of His Majesty King Charles III has stressed the need for open societies and democracy, and offered criticism on the decisions of the Supreme Court of Pakistan, reciprocity would presumably be acceptable."

“This letter is written on instructions of the Chief Justice of Pakistan, who extends to you and the people of your country his yearning for openness and democracy, and his best," the letter stated.

A copy of this letter was also sent to Lord Robert John Reed, President of the Supreme Court of the United Kingdom and Baroness Sue Lascelles Carr, Lady Chief Justice of England and Wales.

‘Bizarre’

Commenting on it, advocate Abdul Moiz Jaferii said that it was bizarre that the registrar of the SC was writing on the CJP’s instructions to a diplomat in defence of the chief justice’s own judgments.

“It is further bizarre that the letter not only defends those judgments on their merits but goes on to attack the historical position of the country the diplomat represents as an answer to the criticism,” he added."I don’t know of any other instance where such a correspondence has been attempted.

I don’t know of any other instance where it would be considered proper,’ Jaferii said.Meanwhile, the debate has been stirred over whether this letter will impact PTI's pending review petition in the case.