The executive and the Supreme Court (SC) of Pakistan both appear to be helpless before the strong winds of incessant change in our justice system. That the apex institution has lost face would be an understatement. Simply put, every Tom, Dick and Harry (Aira Ghaira Natho Khaira) has been pointing fingers at it ever since the curious case of the Qazi.
Like the proverbial blanket, everyone wants to get rid of it but the the Qazi case refuses to let go. The wise Justice Qazi continues to demonstrate his moral and intellectual superiority with his calculated moves refusing to take anything lying down.
From the yet-not-heard-for-review majority judgement of the full court in the Justice Qazi case to the constitutional challenge undermining the moral authority of the Supreme Judicial Council (SJC) by Justice Shaukat Siddiqui –who was summarily dismissed as a judge of the Islamabad High Court (IHC) following his public speech alleging interference in the formation of judicial benches—the SC has been seen losing face.
Yet the SC remains belligerent. And now political stakeholders has also decided to take the gloves off.
Sindh Chief Minister Murad Ali Shah has shown to the apex institution –and indeed to the person of the Chief Justice of Pakistan (CJP) himself—that justice not seen done robs the apex court of its dignity. Responding to a contempt of court notice by the SC, the wily politician has placed the apex institution between the devil and the deep sea while killing two birds with one stone. Murad Ali Shah has declared on record that he has awarded the construction contract for Karachi Circular Railways to the Frontier Works Organization in violation of law on the orders of the SC.
Now the ball is in the Supreme Court. It is any one’s guess how the Chief Justice will survive such a perfect political coup de grâce!
The Peoples Democratic Movement (PDM) public meeting in Lahore has only added fuel to the fires of change already lit by Justice Qazi at the SC. With the leading politicians directly calling out to end interference in affairs of the state, the SC has little moral standing left to defend itself in the face of a series of challenging developments.
Justice Qazi refused to take the challenge to his tenure lying down when the Executive helped scalp him with a Reference to the Supreme Judicial Council. He launched such a robust defense before the full court of the SC that it was compelled to quash the reference. This was the first time a reference to the SJC has been quashed by the Supreme Court!
This was amply demonstrated at the Judicial Commission of Pakistan (JCP) last Thursday when it unanimously approved and referred to the Parliamentary Committee on Judges Appointments (PCJA) names of lawyers Babar Sattar and Tariq Mehmood Jahangiri for appointment in the Islamabad High Court (IHC). Chief justice of Pakistan (CJP) Gulzar Ahmad presided over the JCP composed of the senior-most judges of the Supreme Court (SC), chief justice (CJ) and senior-most judge of the Islamabad High Court (IHC), federal law minister, attorney general for Pakistan, members of the Pakistan Bar Council (PBC) and the Islamabad Bar Council (IBC). IHC Chief Justice Athar Minallah proposed the two nominations to fill vacancies.
This victory acquires greater significance when people see that the majority of the judges were indeed not in any mood to make life easy for justice Qazi or his family. This has been evident in the dissension among members of the Full Court on involving the Federal Bureau of Revenue (FBR) in its final judgement being challenged in a number of review petitions. The CJP has departed from SC rules in the formation of the Review Bench and instead have chosen to keep the dissenting judges away from it. This has been the latest bone of contention.
Legal challenges are underway and Justice Qazi continues to make sure the SC remains fully exposed to public scrutiny and reaction. Earlier, on Monday 30 November 2020, Justice Qazi again approached the Supreme Court seeking a review of its contentious June 19 judgement. In the review petition, Qazi has asserted, “After the reference against the petitioner was quashed, there was no justification to direct initiation of FBR proceedings against his wife and children, give guidance and free license to the acts of an executive which had admittedly acted unlawfully against the petitioner.” The petition also points out there was “no justification to direct the FBR chairman to submit the report of such proceedings to the SJC nor for the SJC’s secretary to monitor the delivery of that report, least of all to link the fate of the FBR proceedings against the petitioner’s wife and children with proceedings that may be initiated by the SJC against the petitioner.”
The contentious 19 June 2020 judgement by the full court has also been challenged by many other stakeholders represented by the leading lights of law in Pakistan. It is no surprise the curious case of the Qazi has the most powerful institutions of the state on the retreat. The reputation and honour of the SC remains on stake in the process.
There has been exemplary reporting on the situation by Abdul Qayyum Siddiqui (AQS Live), Hasnat Malik, Nasir Khan, Mian Aqeel, Asif Bashir Chaudhary, Matiullah Jan and other seasoned professionals and their media houses. It is obvious the game is no longer in the hands of the so called “Establishment”.
Justice remains an ideal not often realized. History is an epic rooted in war as justice was found mostly through violence. This means the more powerful has historically controlled the dispensation of justice. Yet, the defeat in the Judicial Commission of Pakistan (JCP) meeting –law minister Barrister Farogh Naseem did not attend because of Corona—is indeed ignominious. Extensive discussion and debate in the process can be directly traced back to cultural changes, the Qazi case has introduced over the last year.
It is no secret most people believe what “they” want goes in our higher judiciary. “Their” approval was considered essential to make it into the higher judiciary. Two members of the JCP were openly saying the names will not be approved. Earlier such reports were common place that declared some nominees to be “morally corrupt” or “financially corrupt” or “not fit to be a judge”.
This had given rise to notorious macabre jokes like: “Morally corrupt. Financially corrupt. Fit to be a judge!”
The JCP meeting has refused to admit intelligence reports while considering judicial nominations. Credit is due to the curious case of the Qazi and the Reference against him to the SJC that he got quashed. The whole nation has weighed in on the process over the last year in over 40 hearings that have manifestly changed the political and social context of justice in Pakistan.
In the past, JCP members would come having made up their mind already who they were going to approve or not approve. Meetings were wrapped up in minutes, noted AQS Live. It is indeed a very welcome development that discussions and deliberations In the JCP now go on for hours before a decision is arrived at. The majority-minority views in the Qazi case judgement under review and the fact that now progressive members are in majority in the JCP means justice is no longer held hostage by special interests.
Taqir Mahmood Jahangiri was once a fiery student leader and a member of the Al-Zulfiqar who lost two fingers to a grenade that allegedly burst in his hand. The fact was brought out as an objection to his nomination during the JCP meeting. Members argued for him highlighting his competence in criminal law and the fact he has proven his patriotism having served as Advocate General (AG) for Islamabad, National Accountability Bureau prosecutor and Deputy Attorney General (DAG) for Pakistan.
Some objections raised on the nomination of Barrister Babar Sattar were hilarious: He was said to be “too rich” for having studied at Harvard and for having paid over 5 million rupees in income tax last year. There were reservations on his having strong views on the Constitution. It must also be noted that CJ IHC Justice Athar Minallah methodically pursued his two nominations. Supreme Court Justices Qazi Faez Isa, Baqir Rizvi and Musheer Alam defended his nomination. They argued strong views are needed for constitutionalism and rule of law. They asserted civil liberties, the rights of the individual must be protected and noted, judges with strong views for democracy are needed to ensure basic rights of the individual as guaranteed in the Constitution of Pakistan.
The three pillars of the state in Pakistan must work in tandem to find that fine balance for justice in society that may sustain the state. These are, therefore, very welcome developments in the higher judiciary. Parliament, Executive and Judiciary must work together to ensure we have a court system with a robust legal culture.
Our legal traditions are based on well-defined judicial institutions, written law, and the presence of legal professionals. Legal traditions must be grounded in law and the rule of law in society. Legal tradition is a combination of the legal history, culture, and accepted institutions with democratic ethos that root a universal sense of right and wrong in society. Given its import in shaping social perceptions of justice, peace, and positive actions for a better future, a cultural understanding of justice is important for society has suffered a lot.
It is the role of justice to blindly balance rights in society. As the curious case of Justice Qazi continues to demonstrate, the executive must beat a fast retreat. Justice is essential for balance to keep state for the people. And we can all thank Justice Qazi Faez Isa and his equally tenacious wife Sarina Isa for the favour.
In the age of binding global contracts, justice is the only fulcrum where balance may be found for the faltering state of Pakistan.