A controversial judicial legacy

This Friday marked the retirement of Qazi Faez Isa as the chief justice of Pakistan (CJP). His tenure as top judge, which lasted a little more than year, leaves the judiciary more fragile than before, with the institution now highly subservient to the country’s executive authorities.

Throughout his judicial career, Isa developed a reputation for clashing with fellow judges. As he hangs his gown, he will be remembered for fighting his colleagues more than he fought for the rule of law, civilian supremacy and the independence of judiciary. He will also be remembered for his stance against the Pakistan Tehreek-e-Insaf.

Justice Isa was not consistent in his approach towards the country’s security establishment. As a Supreme Court justice, he frequently questioned the conduct of ‘powerful circles' in several matters, such as the Faizabad dharna case, the Quetta Commission report and media freedom, etc. However, when he assumed the role of the CJP, he acted much differently, sometimes even in a complicit manner towards the same circles, which came as a shock for those who supported him in difficult times.

With regards to the PTI, Justice Isa did nothing to dispel the impression that he was biased against the party. All forces that oppose PTI, on the other hand, now consider him among the best top judges of the country.

Commenting on Isa’s tenure, a former attorney general for Pakistan (AGP) said that he was an unlikely CJP. "Even his most ardent supporters and his defence team were not sanguine about the prospects of him surviving the reference. His determination, courage to take on the powers that be and iron will won the day. The same qualities that served him well when facing impossible odds proved to be his undoing as CJP. An insufferable belief in always being in the right, a tendency to suffer no contending views, a habit of taking no prisoners and an inability to compromise were his undoing"

The ex-AGP noted that Isa did not heal any ‘wounds’ from the Nisar, Gulzar and Bandial periods. He noted that the outgoing CJP did not even try to repair the breaches amongst the brethren. Isa’s ‘collegiality be damned’ attitude further divided an already divided court, he added, leaving the institution even weaker, if that is possible, than when he took office.

"Ex-CJP Isa came to office having forgotten nothing about his suffering and having learnt nothing from it. He forgave no one who had ever opposed him and sought to curb all dissonant voices and vanquish all opposition. In the end he overreached. And when it became impossible to succeed, he followed a scorched earth policy that has left the Supreme Court weaker than [it was] even [during] the General Zia days,” the former AGP remarked. “An honest and self-righteous man, by genuinely believing that his self-interest was the interest of the Court, he left the judiciary in disarray and the judges not in the need of an executive sword to fall upon," he added.

Tussles with other top judges

Justice Isa started his career as the chief justice of the Balochistan High Court in 2009 after the Supreme Court July 31, 2009 judgement wherein PCO judges were ousted. In that position, Justice Isa presided the Memogate commission during Pakistan Peoples Party regime. The legal fraternity in the province of Balochistan did not consider him a judge who would challenge the status quo.

Still, Isa remained in the news due to his strong dissent and differences with fellow judges since his elevation to the Supreme Court in September 2014. His first difference came to the surface during the tenure of ex-CJP Anwar Zaheer Jamali. Justice Isa had raised objection over the formation of a larger bench in the Houbara Bustard case and the exclusion of one judge who was part of the bench that cancelled the ban on the hunting of the endangered bird species in the country.

Isa also made headlines during the tenure of ex-CJP Mian Saqib Nisar when he raised serious questions over the manner in which the human rights cell of the top court initiated public interest litigations. He also expressed grave concern over the dissolution and reconstitution of a bench by former CJP Nisar at the Supreme Court’s Peshawar Registry on May 8, 2018.

The relationship between outgoing CJP Isa and former top judge Asif Saeed Khosa was also tense after Panama judgement. Justice Isa had authored the judgment on the dismissal of NAB's appeal regarding the reopening of the Hudaibiya Paper Mills case against the Sharif family. When the Supreme Judicial Council initiated proceedings of misconduct against Justice Isa, he accused ex-CJP Khosa and other council members of harbouring biases. He also raised questions on the conduct of the SJC before the Supreme Court.

Likewise, Isa’s relationship with ex-CJP Gulzar Ahmed also remained tense on the topic of the appointment of superior court judges. But the worst occurred during the tenure of former CJP Umar Ata Bandial when Justice Isa was not included in benches hearing important matters.

Tenure as CJP

Despite all resistance by his judicial brethren and the powerful circles, Justice Qazi Faez Isa took oath as CJP September last year. His biggest challenge was to ensure free and fair general elections as the Election Commission of Pakistan (ECP) and other concerned authorities were completely failing to announce a date for the polls.

It was expected that Justice Isa would unite the judiciary and would restore the superior judiciary's authority, which receded during the tenure of his predecessor Umar Ata Bandial due to internal clashes. Although CJP Isa ensured that the general elections were held on February 8, the process was criticised for neither being free nor fair.

One political party, namely the PTI was targeted before the election. Instead of ensuring the rights of party workers, he remained silent, which revealed his agenda toward PTI. At the same time, he supported other political parties by overturning the Supreme Court’s earlier judgement on the lifetime disqualification of Nawaz Sharif and Jahangir Khan Tareen.

CJP Isa faced criticism for the January 13 order, which declared PTI’s intra-party election illegal, subsequently depriving the party of its election symbol. This decision raised concerns over the fairness of the 2024 general elections.

PTI chief Imran Khan was convicted in three cases before the general elections, without following due process. The superior judiciary, notably, did not intervene in the alleged manipulation of judicial proceedings in Khan’s cases before the election.

Despite all efforts, the February general election results were not favourable for powerful circles, and PTI continued to raise questions about the final results.

CJP Isa remained the 'guarantor' of the system that has been working since the February 8 general elections. After the polls, he played a key role in ensuring the present government retained two-thirds majority in parliament by passing certain judgements.

It is believed that the 26st constitutional amendment was not possible without support of Justice Isa.

After the election results, Islamabad High Court judges raised concerns about the manipulation of judicial proceedings. Six IHC judges sent a letter to the Supreme Judicial Council on March 25, seeking guidance on the interference of agencies in judicial matters. Instead of acting against the alleged interference, the Supreme Court under CJP Isa referred the matter to the government for the formation of an inquiry commission.

When former chief justice Tassaduq Hussain Jilliani declined to head the commission, the Supreme Court initiated suo motu proceedings, during which other high courts also admitted the interference of agencies. CJP Isa did not publicly endorse the stance of the six IHC judges on agency interference and that case is still pending.

Meanwhile, many judges have been subjected to a malicious campaign, and even former Lahore High Court Chief Justice Malik Shahzad Ahmad Khan was targeted through a social media smear campaign. These attacks on independent judges continued because the Supreme Court, led by CJP Isa, failed to create deterrents against such interference. That is what prompted Justice Syed Mansoor Ali Shah, in a recent letter, to remark that CJP Isa “an ostrich, with his head in the sand, remained complacent and indifferent to external influences and pressures on the judiciary.”

“Instead of standing as a bulwark against interference, he opened the gates wide, betraying the judiciary's sacred role as a check and balance on power. He showed neither the courage nor the moral fortitude to defend the judiciary. Rather [he] ceded ground to those who sought to weaken the courts for their own gain thereby compromising the very foundation of the rule of law,” Shah added.

Although his rival group within SC became weaker after the departure of Ijazul Ahsan and Sayyad Mazahar Ali Akbar Naqvi, five SC judges did not attend Isa’s farewell dinner.

CJP Isa is being given credit for the passage of the 26th constitutional amendment, which has increased the influence of executive in the appointment of judges, especially the CJP, as well as constitution of benches through the Judicial Commission of Pakistan.

History is unlikely to forget his part in weakening the institution.