Farewell to Qazi Faez Isa

In my article titled 'Justice Qazi Faez Isa and the expectations', published in The Express Tribune on September 29, 2023, I wrote, "The Chief Justice derives his authority from the Constitution and statutes and cannot go beyond." This was a fitting precursor to the intense, often controversial tenure of Justice Isa as the 29th Chief Justice of Pakistan, spanning from September 17, 2023 to October 25, 2024. His tenure, marked by bold decisions and fierce criticism, has left an indelible imprint on Pakistan's judiciary and political landscape.

Chief Justice Isa's departure was acknowledged with mixed emotions by his colleagues at the Supreme Court. His legacy, much like that of Justice Munir, whose contentious judgments are still debated today, will be the subject of analysis for years. Justice Isa's time as Chief Justice was defined by a series of landmark rulings and reforms, many of which were celebrated for their boldness while others were scrutinised for alleged bias, particularly against PTI.

From the outset, Justice Isa was seen as a polarising figure. Supporters praised him as a jurist par excellence committed to transparency and accountability. To his credit, he advocated for public access to Supreme Court proceedings, an initiative that won him acclaim for its intent but was criticised as lacking meaningful change. His most significant reform - restructuring the power dynamics within the Supreme Court - came with the validation of the Supreme Court (Practice and Procedure) Act, 2023, through a majority ruling of 10 judges. While many lauded this decision as a step toward democratising the judiciary, critics argued it compromised the autonomy of the Supreme Court and opened doors for undue political interference.

Justice Isa's rulings during his tenure reflect a complex blend of judicial courage and perceived partisanship. He upheld the conviction of former military ruler General Pervez Musharraf and expressed a rare 'mea culpa' for the flawed trial that led to ex-PM Zulfikar Ali Bhutto's execution. He overturned the lifetime disqualification for politicians under Article 62(1)(f) and declared the dismissal of former judge Shaukat Aziz Siddiqui unlawful. However, even in the Siddiqui case, he stopped short of ruling against military figures like Gen Qamar Javed Bajwa and Gen Faiz Hameed, exposing the limits of judicial activism when confronting powerful institutions.

Justice Isa's perceived bias against Imran Khan and PTI was a recurring theme throughout his tenure. This bias was particularly evident in the January 13 ruling where PTI's intra-party elections were declared illegal, effectively stripping the party of its electoral symbol. This decision, which left PTI's political future uncertain, sparked widespread criticism for compromising the fairness of the 2024 general election. The ambiguity of the ruling meant that the Election Commission of Pakistan could misinterpret the decision without any correction or clarification from Justice Isa himself. This left PTI and a large segment of its supporters feeling disenfranchised and without clear legal recourse.

The decision to not address the misinterpretation of his own ruling exemplified Justice Isa's reluctance to directly challenge certain state actors. His hesitation to address the grievances of six IHC judges who sought intervention on interference by agencies in judicial matters further showcased this. This inaction, coupled with targeted social media campaigns against judges like former LHC Chief Justice Malik Shahzad Ahmad Khan, prompted Justice Syed Mansoor Ali Shah to describe Justice Isa as "an ostrich with his head in the sand".

Justice Isa's tenure was not without its merits, particularly in the areas of social justice and environmental protection. In the Faizabad Dharna case, he underscored the right to peaceful protest while balancing it against the rights of others, emphasising that no protest should impede public life. Similarly, his judgment in the Mohammad Aslam Khaki v Khalid Farooq Khan case reinforced the preservation of public parks and green spaces, opposing the commercialisation of public land. This decision highlighted the importance of equitable urban development in a country where millions are deprived of basic housing.

In another landmark ruling, Justice Isa criticised the preferential treatment given to judges and military officers in land allotments in the Federal Government Employees Housing Foundation v Ghulam Mustafa case. He argued that such practices perpetuate inequality, sending a powerful message about the misuse of public resources. His stand on inheritance rights ensured that women were not deprived of their due shares, furthering gender equality.

Justice Isa's tenure was marked by his commitment to using Article 184(3) of the Constitution, which empowers the Supreme Court to address violations of fundamental rights. Notable among these was his intervention in the delayed elections for Punjab and Khyber-Pakhtunkhwa assemblies, where he ruled the ECP's decision to delay elections unconstitutional and directed elections to be held by May 14, 2023. Despite this, elections under his watch were postponed until February 2024 and were widely criticised for lacking fairness and transparency.

One of the most contentious outcomes of Justice Isa's tenure was the interpretation of Article 63(A), which fueled political maneuvering and facilitated the passage of the 26th Amendment. This amendment, seen by many as an expansion of executive power in judicial appointments and bench formations, eroded the judiciary's independence. The repercussions of these amendments threaten the fundamental structure of the Constitution, potentially weakening the judiciary's ability to safeguard political freedoms and fundamental rights.

Justice Isa's legacy is thus a tapestry of landmark decisions intertwined with missed opportunities. His unwavering defence of constitutional principles was evident, but so were the limitations imposed by external influences and an apparent reluctance to confront powerful institutions head-on. His tenure demonstrated the formidable challenges faced by a Chief Justice navigating an environment charged with political and military undercurrents.

Justice Isa's departure leaves behind a mixed legacy, one marred by both bold pronouncements and questionable conduct. While his advocacy for transparency and accountability initially garnered praise, his tenure was increasingly characterised by controversy and accusations of judicial overreach. His tenure often seemed to be more driven by personal agendas than by the rule of law, and indifference to violations of fundamental rights, undermining the independence of the judiciary.

In the end, the most telling aspect of Justice Isa's era was that, despite its achievements, the true essence of upholding fundamental rights often remained overshadowed by controversies and political entanglements. His impact will resonate in the coming years as Pakistan continues to grapple with its quest for a balanced and independent judiciary.