Reference Against Qazi Faez Isa: How Many Coincidences Will It Take To Establish A Pattern?

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Reference Against Qazi Faez Isa: How Many Coincidences Will It Take To Establish A Pattern?

We live in interesting times. Not long ago, the lawyers had launched a movement for the independence of the judiciary and the reinstatement of deposed judges. Although the movement was successful in having the deposed judges reinstated, the issue of the independence of the judiciary did not meet the same fate. In fact, on account of the lack of any serious efforts to fix the accountability system, the methods of appointment and removal of judges, as well as the streamlining and deletion of the procedures resulting in criminal delays, the dream of a truly independent judiciary turned into an existential dilemma.


Also read: ‘Leaks To Media About References Also Character Assassination’


After all, an independent judiciary is one which is insulated from outside pressures, whilst also inherently accountable for its own actions. Such internal accountability strengthens the institution, and gives it the strength to ward off external threats. When the latter mechanisms fail, there is an irresistible urge and opportunity for the executive, on the back of calls for accountability, to exert influence over the institution.

This is precisely what is now happening to the judiciary. In the form of a reference against Justice Qazi Faez Isa, a Supreme Court Justice, the judiciary appears under attack. However, with a history of no functioning internal accountability processes, the question arises as to whether it will be able to garner the support it requires to thwart such attempts.

The arguments defending the filing of the reference are simple enough. Amongst others, It is asserted that the judiciary, being traditionally unaccountable, is now no longer a sacred cow. Therefore, any step in initiating the process of accountability is welcome. 

This notion appears to stem from the perpetual refusal of the judiciary to introspect, which truth be told, can partly be blamed for its current predicaments. Nonetheless, the above argument misses certain fundamental realities. Firstly, selective accountability is no accountability at all. As example would have it, whenever a process of selective accountability has been introduced in the country, rather than the weeding out corruption or the colourable exercise of authority, the only long-standing effect it has had is to silence dissenters at the expense of their right to thought and freedom of speech.


Also read: SCBA To Protest Inside Courtrooms If Reference Against Justice Isa Is Not Withdrawn


Take for example the process of accountability that the media has had to endure. The media, for all its faults, was vibrant and critical a few years ago. On account of its lack of functioning internal accountability mechanisms, as noted by several senior journalists themselves, the executive was provided a foot-in to tame the critical thinkers in the garb of bringing media quacks to book. Such a process was supported by the public, and in pursuing this campaign, specific channels, which were coincidentally critical of the establishment, were targeted, with advertisements choked, broadcast feeds restricted, and their owners eventually hounded. PEMRA was also instructed to take to task such channels, who were now subject to excessive and threadbare regulation by the watchdog.

This did not result in journalism of a higher quality, news reports with greater accuracy, or more responsible reporting. On the contrary, it resulted in channels falling in line with a narrative dictated by the state, irrespective of how discredited it was, and how unverifiable it had come to be. Corruption and fake news seemingly thrived in the media, with the only casualty in the much touted accountability process being its independence.

This is why the Pashtun Tahuffuz Movement (PTM) cannot find reference on any channel, why certain institutions cannot be criticized on any channel in Pakistan no matter what they do, and why critical opposition parties were intentionally sidelined from coverage in the lead up to the elections. One of the consequences of ‘PTV’-izing the broadcast media is that the credibility of the news channels has diminished, which is probably why people appear to prefer twitter feeds to mainstream media nowadays.

In the same way, political parties critical of the establishment’s role in politics have been targeted in the name of accountability. On account of a lack of internal checks, and a lack of interest in furthering accountability goals during their stints in power, the PMLN, and now the PPP, have come under increasing pressure due to their own short sightedness. As such, without much opposition from the public, they are now being subject to the accountability process which has all the hallmarks of a personal vendetta. Other big fish, who happen to be in the ruling party, or are closely associated with them, seem to be largely immune from such prosecution. This has in fact also been purportedly admitted by the National Accountability Bureau (NAB) Chairman, who is reported to have acknowledged that NAB has made a conscious effort to keep away from corruption connected with the ruling party and its members and allies.

As a result, rather than it decreasing, or a sense of justice prevailing, the only noticeable result of targeting political parties which appear critical of a state narrative has been a decrease in the independence and freedom with which those and other political parties represent their constituencies. The inability of most political parties to discuss the defence budget, criticize the establishment, or even support movements such as the PTM, is indicative of this new politics of censorship.

In much the same manner, the focus of such selective accountability is now shifting to the judiciary. Justice Qazi Faez Isa’s ordeal appears to have begun with the release of the Faizabad Dharna judgment and the Quetta Commission Report. After such events, it is reported that an estimated eleven review petitions were filed against the Faizabad Dharna judgment, specifically to expunge comments about the security forces and certain facilitators.


Also read: Barring Media from Discussing Reference Filed against Justice Faez Isa Violates Freedom of Speech Guaranteed by Constitution: PFUJ


Coincidentally, after the passing of such critical remarks by him, incessant challenges to the elevation of Justice Isa to the Supreme Court, and in fact, his very right to be a judge, were also made. In relation to the reference itself, the innocuous leaks to the media of its contents, when the same was not even within the knowledge of the learned justice himself, also indicates a well-coordinated attempt to neutralize dissent. The above events have been disregarded by some as mere coincidences, but nevertheless, if nothing more, it would still beg the question as to how many coincidences will it take to establish a pattern?

Couple the manner and timing of this reference and the speed with which it is being taken up, with the fate of older references pending before the Supreme Judicial Council (SJC), and one can begin to understand as to why certain quarters may perceive these moves as something more than a mere attempt to further accountability. This correlation in no way indicates any complicity on the part of the SJC, or its members, however, it does add to the perception of selective accountability.

In fact, it would be worthwhile to note that only a short while back, the Women’s Action Forum (WAF) issued a press release in relation to the disposal of their pending reference against the former Chief Justice of Pakistan, Justice (r) Saqib Nisar. The forum had specifically questioned as to why the reference, which was filed on October 10, 2018, was not taken up during his remaining tenure of three months, and as to why the SJC waited for his retirement to dispose of it as having become infructuous?


Also read: 32 Things Supreme Court’s Faizabad Verdict Says About Citizen Rights


The insinuation, it seems, was that the matter was intentionally delayed till his retirement so that it could be disposed of without any formal inquiry or recommendation. WAF went on to state that the matter should be heard, and if any misconduct is proved, despite his retirement, such a pronouncement must positively be made. WAF predicated such request on the fact that such cases, if not pursued, would allow corrupt judges to receive governmental pension and benefits after retirement.

Additionally, whilst references before the SJC typically remain pending for substantial periods of time, some contend that the only judges in recent times against whom the SJC proceedings arguably moved at an unusually quick pace were/are Justice (r) Iftikhar Chaudhry, Justice Shoukat Ali Siddiqui, as he was then, and now Justice Qazi Faez Isa. Interestingly, all three had given critical opinions on the establishment and its politics from time to time.

Although not conclusive, and perhaps even untrue considering the lack of public information about pending references, this nugget nonetheless adds to the air of uncertainly regarding the genuineness of the allegations against Justice Qazi Faez Isa.


Read more: Barring Media from Discussing Reference Filed against Justice Faez Isa Violates Freedom of Speech Guaranteed by Constitution: PFUJ


All in all, accountability can only be furthered and pushed as an agenda point in Pakistan if it is uniform in nature and applicability. However, in the event that the accountability process is selective, it will achieve nothing more than to quash dissent and punish differences in opinion. In doing so, the independence of the institution in question is compromised, and along with it, that of the members in question. Eventually, such process hallows out the institution, and leaves it to be a mere shadow of the strong pillar that it once was. This is what the lawyers and their bar associations foresee, and why they can be seen readying themselves for another epic battle, that is, a battle for the soul of the judiciary itself.

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Basil Nabi Malik

The writer is a lawyer based in Karachi.

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