Justice Qazi Faez Isa's Stance: An Exception Or The Rule?

Justice Qazi Faez Isa's Stance: An Exception Or The Rule?
Pakistani leftists, liberals, PPP and, of late, N-League (the “Joint Opposition”) are no fan of the Supreme Court. Mention Iftikhar Muhammad Chaudhry or Mian Saqib Nisar in their presence and then just run away. But they are all supporting Justice Qazi Faez Isa, because they believe that he is the first exception to the general rule (no pun intended) in Pakistan that when it comes to judges and men in uniform, it’s a “no see”. That is, a civilian judge is not supposed to exercise any jurisdiction over an on-duty member of the armed forces for any reason whatsoever, or, for that matter, even bring anything on judicial record that may necessitate accountability of these forces. When Justice Isa noted in his Faizabad dharna judgment – twice, in paras 15 and 45) - that “TLP’s dharna participants received cash handouts from men in uniform”, relying on the BBC report in this regard, he broke this rule, they say. Since this has never been done before, Justice Isa has come to be an exception to the rule, they say.

However, while agreeing that Justice Isa has indeed done what we “see” him to be doing, I am compelled to “call out” the Joint Opposition for their “hatred of Yazid/Army rather than love of Ali/Justice Isa”, and submit as follows: Justice Isa was acting in a suo moto case on the Faizabad Dharna (SMC No. 7 of 2017), which is to say that he was acting at the behest and with the blessing of then Chief Justice Mian Saqib Nisar (tenure: 31.12.2016 to 17.01.2019). Needless to say, you would have noticed that a suo moto is very much akin to a licence to kill. Chief Justice Nisar gave this licence to Justice Isa, and the former in turn had gotten it from his predecessors, in the dynamic form perfected in practice and bequeathed by the numero uno, Chief Justice Iftikhar Muhammad Chaudhry (tenure: 29.06.2005 to 11.12.2013). This is the full picture of our current judicial landscape, and we must “see” it using the lens of comprehensive and impartial historical analysis, as I have tried to do below.

Let’s start with unpacking this rule of “no see” as applicable to the armed forces of Pakistan. The Courts are a civilian institution with jurisdiction over all other civilians and civilian institutions. If there is a strong argument among two civilians, the last word would be that of a Justice of the Supreme Court of Pakistan. This leaves only one institution out: non-civilians, that is, the national defence forces, or the military. Military is no doubt the second most important institution for any sovereign democracy – after the Parliament that is – but they are not civilians. Their recruitment, training, discipline and maintenance can be administered only in light of their internal and classified regulations, rather than being guided by the Parliament or civilian courts. Under our Constitution, the Parliament and the Prime Minister are supposed to lead the armed forces in case of war or internal disturbance, but otherwise just “raise and maintain” them and “appoint” the Big Four, and the Civilian Courts are not supposed to have anything to do with this entire business. And since it’s our army, it would hate nothing more than being probed by a civilian judge in a civilian courtroom. If the Supreme Court, or any other civilian court, has a question for anyone in uniform, it would ask the Defence Secretary, and if it is really necessary, the Defence Minister, or even the Prime Minister. But: no see.

If you are really smart, you would be thinking: “Wait a minute, what about ‘action in aid of civil power’ under Article 245 of the Constitution? Is this guy saying that, unlike cops, you can’t take a soldier to court for any misuse of authority when they are acting in aid of civil power, literally side by side with the cops in civilian areas?” And you would be right. Remember the presidential pardon for the Rangers who killed an unarmed Sarfaraz Shah in Karachi? That was the worst case scenario. This corollary is in fact corroborated by clause (3) of Article 245: “A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245.” You could possibly still challenge the military in the Supreme Court but the policy preference is clear: “no see”. It appears to be a very serious rule, designed to protect the discipline, morale and command of the armed forces and jealously guarded by the Generals.

Needless to say, our army has taken the fullest advantage of this constitutional privilege by interpreting it as immunity, while also making itself all-powerful and totally unaccountable to civilians. Justice Isa therefore has shown exemplary courage in “seeing” that the army men went beyond their constitutional mandate during the patently malicious Faizabad Dharna. However, much as the Joint Opposition would like to believe, Qazi Isa’s courage did not come out of the blue: he is only taking forward the mission of several courageous judges in Pakistan’s recent history, including the ones they hate so passionately and stubbornly.

Remember, in the 60 years between 1947 and 2007, there was only instance in which a man in uniform was “seen” by the civilian courts: General Yahya being called a “usurper” by the Supreme Court in the Asma Jilani case of 1972. However, since 2007, we can count several such cases with detailed written judgments that cannot be erased from widely and publicly available judicial record (with the first two cases being “facing” rather than just “seeing”):

  1. In 2007, the Supreme Court struck down the presidential reference filed by Army Chief and President Musharraf against Chief Justice Chaudhry seeking his removal;

  2. In 2009, the restored Chief Justice Chaudhry not only declared Musharraf’s emergency of 3 November 2007 unconstitutional but also restored the remaining brother judges who had been sacked along with him;

  3. In 2012, the Supreme Court “saw” the role of army chief and DG ISI in the 1990 general elections in the Asghar Khan case;

  4. In March 2014, a Special Court formed by Nawaz government “saw” Musharraf in person and indicted him for high treason, but he absconded as soon as he realized that Chief Justice Chaudhry’s 2009 judgment mentioned earlier had pretty much already sentenced him to death and that the Special Court was merely going to execute him. And since there was no chance of Musharraf coming back, the Special Court wrapped up the matter by sentencing him to death in absentia in December 2019.

  5. In November 2017, Supreme Court’s Justice Isa and Islamabad High Court’s Justice Shuakat Siddiqui both gave oral observations about the military’s role in the Faizabad dharna but did not immediately bring anything on record. However, in July 2018, Justice Siddiqui in a public speech “exposed” the army’s interference in judicial proceedings, and was promptly removed in October by the Supreme Judicial Council for violating the “general rule”. However, rather than backing down, Justice Isa went a step further when he announced his judgment in February 2019: he brought the corruption of the men in uniform on judicial record. Since it’s a live matter concerning serving generals, it’s nothing short of an irrevocable declaration of war between Justice Isa and the generals – a war that Justice Isa cannot win without the support of his brother judges. Indeed, if Justice Isa survives the reference filed against him, Justice Siddiqui might also be restored.

  6. In November 2019, the Supreme Court “saw” the extension being given to Army Chief Bajwa, and actually necessitated legislation by Parliament to protect Bajwa. Moreover, there is still a possibility that Bajwa’s extension might be invalidated by the Supreme Court, in very near future. This is so because, you might have noticed above, Constitution only gives the power to “appoint”, which word ordinarily does not include extension in appointment or re-appointment. Parliament’s only constitutional option, short of amending the Constitution, was to permanently extend the tenure of army chief to six years, starting with Bajwa. Since the Parliament has only passed an ordinary law giving extension to the army chief, it only needs someone at the right place to “see” the word “appoint” as used in Article 243(3) of the Constitution.

The above cases make it clear that Justice Qazi Faez Isa is not an exception: he just happens to be the tip of the spear at the moment.

Therefore, it must be acknowledge by all other civilians, especially the “Joint Opposition”, that the judiciary – judges and lawyers – have been acting alone (using their own hearts and minds) when they are acting against the military, and it is the same when they go after the politicians, and in this regard, they are guided only by sound principles of constitutional policy.

We must also see that while the judges have their heart in the right place, they are not messiahs who can simply wish things into existence. Judges have to experience as much pressure from the establishment as any other civilian power centre, and they have only as many resources to resist as any other civilian institution in Pakistan. Therefore, we must always try to honestly assist and strengthen the hand of the judiciary, even when they are going after your favourite political leader (to weaken the military’s undue pressure and get justice, if nothing else). At the very least, the allegation that the judiciary is in cahoots with the military – forming a “military-judicial complex” – should be withdrawn and effort should be made to impartially and completely understand the fine balancing of the civil-military equation done by the Supreme Court in each of its big cases since 2009, always remembering that judges and lawyers, at the end of the day, are civilians.

The author is a lawyer and a civil servant based in Lahore.