[News Analysis] Imran opens Pandora’s box against three CJs by blaming establishment for Justice Isa reference

KARACHI: In September 2023 Justice Qazi Faez Isa will become the new chief justice of Pakistan, and as this date in September inches closer Imran Khan further distances himself from the reference filed against Justice Isa during his regime.

Recently, Khan made a big disclosure and also conceded that the establishment of that time had been involved in the filing of the reference against Justice Faez Isa, and this came from a much higher level than that of then DG ISI Faiz Hameed. On the one hand, Khan admits helplessness of his government and also issues a charge sheet against the establishment by giving such a statement, and on the other hand, after giving this statement he has raised questions about the conduct of the apex judiciary. It is so because whatever action was initiated against Justice Faez Isa was within the domain of the judiciary as it should have foiled this conspiracy had it desired so.

But the facts show that one chief justice after another, instead of supporting his brother judge against this conspiracy, allegedly remained involved in this conspiracy.

This vindictive action was launched against Justice Faez Isa because of his judgment about the Faizabad sit-in as he pointed out the political agenda of the Tehreek-e-Labbaik Pakistan, the failure of the then government, and the role of the establishment. Since this judgment, successive chief justices have not allowed Justice Faez Isa to become part of any bench hearing any important political and constitutional case.

Despite this situation, he is still considered the most senior and competent judge of the Supreme Court.

Successive chief justices have not just sidelined Justice Faez Isa but also made sure that Justice Sardar Tariq Masood, considered a supporter of Justice Isa’s viewpoint, shouldn’t also get the chance of hearing important political and constitutional cases. The most surprising aspect is that the honouranle judges who declared null and void the actions launched against Justice Faez Isa on the Supreme Court’s orders were also sidelined one after another.

There is a context to the action of sidelining Justice Faez Isa by the successive chief justices of the Supreme Court.

In January 2019, Justice Asif Saeed Khosa became the chief justice of the Supreme Court, and in May 2019 the government filed a reference against Justice Faez Isa. The filing of the reference pitted Justice Khosa and Justice Isa against each other. Justice Isa levelled the allegation of biased conduct against Justice Khosa. After raising this objection against Justice Khosa, Justice Isa pleaded with the court to form a full court bench to adjudicate the presidential reference. Afterwards, a 10-member bench headed by Justice Umar Ata Bandial conducted a hearing on the presidential reference against Justice Isa.

But a strange incident occurred during the tenure of Justice Gulzar Ahmed before Justice Bandial became the chief justice. At the beginning of 2021, when Justice Isa took cognisance of the issue of the release of development funds by then prime minister Imran Khan, then chief justice Gulzar Ahmed formed a five-member larger bench under him. That bench also comprised Justice Mushir Alam, Justice Bandial, Justice Qazi Faez Isa, and Justice Ejazul Ahsan. Then on February 11, when this bench was hearing this case, Justice Bandial objected to the ruling of Justice Isa asking the PM to respond to the court in his personal capacity.

Justice Bandial addressed the attorney general and asked: “Attorney General Sahib, whether or not the prime minister was answerable in his personal capacity. The prime minister enjoys constitutional immunity. The PM is answerable to the court when the issue is related to him [PM]. In case the government is answerable, the PM cannot be questioned.” Justice Bandial, while further addressing the then attorney general, said: “Attorney General Sahib, make sure that no illegal order is issued.”

The important issue is that during the same hearing, Justice Isa remarked that he didn’t know “whether or not the prime minister enjoys constitutional immunity on political steps. The courts in the past used to summon the prime ministers.”

Chief Justice Gulzar Ahmed interfered during the hearing and remarked: “We are not present here to control the Prime Minister’s Office as we are only disposing of this case. The prime minister and an honourable judge are opposing parties in a case.”

The judges included in the bench left the courtroom after these remarks by the chief justice.

Chief Justice Gulzar Ahmed had issued an unprecedented order and restrained Justice Qazi Faiz Isa from hearing cases against Imran Khan.

Justice Gulzar had observed in his order that Justice Faiz Isa should not hear cases pertaining to Khan because he himself became a petitioner against Khan and it would be appropriate in the interest of justice that Justice Isa may not hear cases related with Khan.

It is interesting that Imran Khan had not filed any complaint that Justice Isa may be restrained from hearing his cases and no objection had been raised in this regard.

Another interesting incident of sidelining Justice Isa was when Justice Isa took notice of harassment of journalists in August 2021 after some journalists complained to him that some government departments were harassing them at the behest of the government. Justice Isa issued notices to the FIA and others law enforcement agencies. However, Justice Umar Ata Bandial, who took the oath as acting chief justice of the Supreme Court on August 20, 2021, suspended the suo motu notice of Justice Isa the following day and constituted a larger bench to hear the matter. It was Justice Isa who administered the oath to Justice Bandial.

The larger bench comprised Justice Bandial, Justice Ejazul Ahsan, Justice Munib Akhtar, Justice Qazir Mohammad Amin Ahmed and Justice Mohammad Ali Mazhar, and this five-member bench set aside the suo motu notice of Justice Esa and held that only the chief justice has the authority to take suo motu notice of public interest issues and constitute benches of the apex court.

The larger bench had however agreed that there was an impression of imbalance while exercising such powers and suggested that the chief justice take steps to remove that impression.

However, that imbalance was not addressed despite being pointed out by several judges of the apex court. Recently, Justice Faiz Isa issued a judgment with regard to suo motu notices and held that such an exercise may be postponed until proper rules and regulations have been prepared by the apex court; however, that order was disregarded by the SC’s registrar through a circular.

Likewise, Chief Justice Bandial is seen defending his colleague judges, and despite the filing of several references against Justice Mazhair Ali Naqvi he was standing with him unlike Justice Isa, who was not supported by any former chief justices.

In March 2023, Chief Justice Umar Ata Bandial had remarked that the inclusion of Justice Naqvi in the bench was a silent message and those who talked about my judges would have to face me.

The CJ remarked: “I too have a heart and feelings, and if there is a tax matter, then ask the relevant officer to trace it. How could we conduct the trial of a judge over a tax matter?”

But, interestingly, the larger bench in the Justice Qazi Faiz Isa case, headed by Justice Bandial, directed that the wife of Justice Isa produce the source of income before the FBR, and the FBR was directed to submit a compliance report.

However, later, six judges of the Supreme Court -- Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Miankhel, Justice Mansoor Ali Shah, Justice Yayha Afridi and Justice Aminuddin Khan -- had modified the Justice Bandial order and restrained the FBR from taking any action against Justice Isa and his family and quashed all the proceedings.

Justice Bandial had written in its separate note in the presidential reference against Justice Isa that an apex court judge is answerable to the special forum which was constituted to probe allegations with regard to his misconduct. Justice Bandial had observed that questions with regard to the source of funding for the purchase of properties were relevant and legal and judges were also answerable for their mistakes and in the instant matter there was material which needed to be explained before the Supreme Judicial Council and it should be explained so that all suspicions raised on the apex court and Justice Faiz Isa could be addressed. These were the views of Justice Bandial in Justice Faiz Isa’s presidential reference.

Questions are now being raised over the conduct of another Supreme Court judge. The Pakistan Bar Council has filed a reference against the judge before the Supreme Judicial Council. At this, the chief justice remarked, “Those talking about my judges will have to face me. If it is an issue of tax, ask the official concerned to trace it. How should we try a judge over the tax issue?”

There is another interesting thing in all this. The majority of the Supreme Court judges qaushed the reference against Justice Faez Isa, after which the Imran Khan government instituted a curative review reference against the decision. There is no precedent of the curative review reference in Pakistan’s judicial history. However, Prime Minister Shehbaz Sharif ordered withdrawal of the curative review reference.

On April 10, Chief Justice Umer Ata Bandial heard the government’s plea regarding withdrawal of the reference in his chamber and reserved his verdict on it, which is yet to be announced despite the lapse of a month. Today, the chief justice gave remarks in defence of Justice Mazahir Ali Naqvi. “Filing of a reference against a judge doesn’t prevent him from discharging his duty,” he said.

However, Justice Isa was stopped from performing his duties from the filing of the reference until the decision on it. Today, the judges who refused to become part of the conspiracy against Justice Isa are being sidelined and now Imran Khan whose government instituted the reference, took its ownership, ran a campaign on media against Justice Isa is now saying that he was asked to do this all by the establishment.

But will the chief justices from 2019 till today tell at whose behest they sidelined Justice Isa and why he was not made part of the benches hearing important cases. Imran Khan’s this particular disclosure is raising questions about the reputation of all these chief justices.

We tried to contact former chief justices Asif Saeed Khosa and Gulzar Ahmed, but they refused to comment.