On April 10, the current truncated and depleted Parliament decided to celebrate the Golden Jubilee of the 1973 unanimously agreed Constitution of the Islamic Republic of Pakistan. There was a cross section of guests. The entire bench of the Supreme Court of Pakistan was invited to grace the ceremony. Only one sitting judge ventured to attend. As he is next in line to take on the mantle of Chief Justice of Pakistan he was made to sit next to the principal co-accused members of the parliament.
He patiently listened to the speeches of Asif Ali Zardari sitting on his right and Shahbaz Sharif sitting to his left. In utter embarrassment the very next day Mr Justice Faiz Qazi Isa had to issue a statement that he had no idea that political speeches were planned for the session. In other words, he felt trapped by the master manipulators. No human being can be forced into submission; it is the cardinal principle of freedom and justice which a judge should understand and practice. All he had to do, was get up, excuse himself and walk out.
As student leaders we did exactly that to stop exploitation/misuse due to our presence and participation. One must have the courage to dissent when trapped by the unscrupulous. Amongst the do’s and don’ts of my late father Nazir Ahmed Malik, a worker of the Pakistan Movement, one item says; ” No compromises, do not fear confrontation ”
His leader, Quaid-e-Azam Muhammad Ali Jinnah, was known for his dissent both inside and outside the courtroom. Under the principle of ‘Recusal’ Justice Isa now stands disqualified to sit on any bench in which cases against Sharifs and Zardar’s are being litigated.
As a gentleman and judge it is hoped that Justice Isa will adhere to the principal of ‘ Recusal ‘ and keep away from the cases of the political bench mates who are accused of serious crimes against the nation who surrounded him in the legislature on that fateful day of April 10.Â
Historically speaking, the Quaid took oath of office as the first Governor General of Pakistan on 15 August 1947 at Karachi. The oath was administered by Sir Abdul Rashid, Chief Justice of Lahore High Court (LHC). The Quaid then went to the Constituent Assembly and administered oath to the first Prime Minster and his six-member cabinet.
The journey of Pakistan started on sound footings under the leadership of the Quaid. After his death, Khawaja Nazimuddin, a stalwart of the Independence Movement, was sworn in as the second Governor-General. Trouble started with the assassination of Liqauat Ali Khan in 1951. Baboo Ghulam Muhammad (Gamma) managed to capture the coveted position of governor-general, pushing Khawaja Sahib down as PM. This crossing of constitutionally laid boundaries has been devastating for the republic ever since. Recovery from this encroachment has been difficult despite tremendous efforts and despite the enactment of the 1973 unanimously agreed constitutional framework.
Since Independence no sitting judge of the superior judiciary has ever sat with the legislators/accused. The President when invited, sits with the Speaker as a guest before his address to the elected representatives of the people. If Mr Justice Isa was invited as a guest he should have sat with the speaker which are the norms of the House.
Moreover, under Government rules of business, permission of the head of the institution is required for any outside formal participation by any member. By his participation in a political event, several red lines have been crossed which calls for appropriate legal action including a complaint to the Supreme Judicial Council, the constitutional body created for accountability of the higher judiciary.
Appeasement never works. Neutrality is the most important requirement of the conduct of a judge. Mr Justice Isa barely survived the last reference against him, that too after his appeal to his fellow judges on the bench. The SJC is the sole legitimate body for accountability of the higher judiciary which should be allowed to function as per law. Although very few judges have been removed by the SJC, several have chosen to resign or retire instead. The entire Lawyer’s Movement could have been averted if the case against Chief Justice Iftikhar Chaudhry had been forwarded to the Council to be dealt with under the law.
Forcing him to resign without due process was a poor decision. Charges against the CJP were of serious nature which should have been pursued. His restoration proved deadly for the nation and rule of law. Then there was a campaign to extend his tenure for the period of his suspension. The idea was so disturbing that the Civil Society was forced to serve the threat of street protests in case of any extension. There was a sigh of relief when the senior most judge and scholar Justice Tassaduq Hussain Jillani took charge of the Supreme Court, thus ending the most deadly term of Mr Justice Chaudhry. However the poor decisions of the outgoing chief continue to haunt the people till today.
Justice Isa is next in line to take over as CJP in September on the retirement of Justice Umar Atta Bandial. Perhaps he will be the most controversial Judge to head the SC. Credibility and neutrality are essential traits of a judge which cannot be compromised under any circumstances. There was a time when the principle of recusal was strictly followed. It reminds me of a story of two judges, father and son, who both rose to be judges of the superior judiciary. Justice Malik Muhammad Akram before accepting the position sought a firm commitment from his family not to approach him for any favours. His son Justice Malik Qayyum, a great legal mind had to resign after his telephone conversations influencing under-trial cases were made public.
As a gentleman and judge it is hoped that Justice Isa will adhere to the principal of ‘ Recusal ‘ and keep away from the cases of the political bench mates who are accused of serious crimes against the nation who surrounded him in the legislature on that fateful day of April 10. At best he should have kept away like his brother judges and at worst he should have exercised the sense of walking out when trapped amongst the under-trial crafty political players directly responsible for the decline of the nation in the last three decades. No one can run with the hares and hunt with the hounds’ at the same time. Mr Justice Isa has to come clean before he takes on the mantle of CJP.
