Justice Ijazul Ahsan: complexities of jurisprudence

KARACHI: Justice Ijaz ul Ahsan will be leaving behind a mixed bag of jurisprudence and his role in some political cases could well be called controversial, say lawyers about the Supreme Court justice who resigned from his post yesterday.

Justice Ijaz ul Ahsan was elevated to the bench in 2009, confirmed as a judge of the Lahore High Court in 2011, appointed as the chief justice of the Lahore High Court in 2015, and then elevated to the Supreme Court in 2016. He was all set to take over as chief justice in just another ten months.

Speaking to Geo News on Thursday, lawyer Reema Omer recalled Justice Ahsan’s jurisprudence history. According to her, “The jurisprudence left behind by Justice Ijaz ul Ahsan has in my opinion been quite regressive. If one starts with the Panama case disqualifications one sees that Justice Ahsan had a big role in all those benches. He was on the bench that disqualified Nawaz Sharif. and then was the monitoring judge in the references that came after it. Justice Ahsan was also on the bench that interpreted lifetime disqualification under Article 62(1)(f).”

Omer went on to say that “Justice Ahsan was also part of the bench that gave the very strange order that only the chief justice could wield suo-motu jurisdiction. In addition to that, in the case involving the interpretation of Article 63A, Justice Ahsan was one of the three judges on the bench who said votes cast by members contrary to party direction must be disregarded. He was also on the bench that granted an anticipatory injunction against the implementation of the Supreme Court (Practice and Procedure) Bill, 2023, and was also on the bench that had suspended the notification establishing a judicial commission to inquire into the veracity of audio leaks involving judges and their impact on judicial independence. So one can see that this is not a jurisprudence one needs to be very proud of.”

Supreme Court advocate Basil Nabi Malik tells The News that “Justice Ijaz ul Ahsan shall leave behind a mixed legacy, albeit a controversial one. On one hand, he will be remembered as one of the like-minded crew that contributed significantly to instability in the country due to the Panama verdict and his role as a monitoring judge. On the other hand, he was also one of the judges who held Imran Khan’s attempt to dissolve the assembly as unlawful, as well as resisted sanctifying military trials for civilians in relation to May 9, 2023. All in all, he left a mixed bag. But no matter how you look at it, it’s never pleasant to have to witness a sitting judge of the Supreme Court, who was expected to be a CJP, resign in such a fashion. It will be a troublesome precedent that can haunt the judicial setup.”

Reviewing Justice Ahsan’s time as a judge, high court advocate and former faculty at LUMS Hassan Abdullah Niazi says that “throughout his career as a judge of the Lahore High Court, Justice Ijaz ul Ahsan was known as a firm but fair judge. I can’t think of many decisions by him that could be termed controversial at all. In the Supreme Court, strictly from a jurisprudential standpoint, his legacy is a bit more mixed -- particularly when it comes to highly political cases. Disqualifying Nawaz Sharif, holding that such a disqualification was for life, and then stating a disqualified person could not be a party head all reflect a judicial approach that was perhaps far too open to reading words into the constitution to justify accountability for politicians. This approach would play out further when he would be part of the majority decision that said the vote of defecting party members could not be counted under Article 63A -- despite no such penalty existing in the text of the constitution.”

But there is the good as well, says Niazi: “While one can disagree with [Justice Ijaz ul Ahsan’s] approach to constitutional interpretation when it came to accountability, he was also firmly on the right side of history in some cases, demonstrating a commitment to democracy. Despite allegations that he was partial towards the PTI, he ruled against Qasim Suri’s actions dismissing the VONC and subsequent dissolution of parliament. Similarly, he was firmly against any delay in the provincial elections last year when the ECP tried to postpone them. And, finally, he declared military trials of civilians unconstitutional and struck down provisions of the Army Act that allowed this.”

Lawyer Abdul Moiz Jaferii offers a far more stringent review of the justice: “Justice Ijaz ul Ahsan agreed with every despotic tendency of every chief justice he worked under, always eager to please. It seems he was too afraid to face the consequences of a breach of contract alone after all his seniors had left him.”

Saying that “although there may be some controversial decisions subscribed to him including the case relating to the counting of votes in the Punjab Assembly or the grant of an acquittal to Shahrukh Jatoi”, Barrister Ali Tahir is of the view that Justice Ahsan regardless “leaves an impressive and enviable legacy behind -- the latest being his decision to declare the trial of civilians in military courts as unconstitutional.”

Tahir feels that the most important part of Justice Ijaz ul Ahsan’s legacy may just be the fact that he “resigned 10 months before he was virtually certain to have become the chief justice of Pakistan.”

Jaferii has a more optimistic take on Justice Syed Mansoor Ali Shah, who is now next in line to become the chief justice of Pakistan: “Justice Shah has proven himself a reformer at the LHC, where neither the bar nor the SC chief let him stay for very long. If he gets a proper run, he may just save this judiciary from itself, and set up a structure which the chief after him can raise even higher.”

Not many disagree with what Justice Mansoor Ali Shah brings to the office, with Hassan A Niazi saying that Justice Shah “is widely considered as one of the most brilliant legal minds in the current Supreme Court. I think what we are most likely to see during his tenure as chief justice is a strong push for institutional reform within the Supreme Court, especially around the use of technology to make access to justice easier. When he was chief justice of the Lahore High Court he worked to leverage technology to institute a new case management system for the court. And the recent use of video links in the Supreme Court is also said to be his initiative.”

Niazi does think, however, that the next chief justice “will face a huge challenge in bringing unity back to the Supreme Court after the constant clashes between judges we have seen over the past year. His legacy will be determined by how he rises to this challenge.”

Basil Nabi Malik too is of the view that when he becomes chief justice, Justice Mansoor Ali Shah’s task “will not merely be to continue developing the law as a judge, but rather to forge a united path for all judges, whether of one worldview or the other, in a manner which guarantees independence within and ensures it without.” Malik adds that Justice Shah “has been a judge who has consistently shown a great understanding of the existing law and an even greater desire to develop and expand it further. On the administrative side, in his stint as the chief justice of the LHC, he had tried to make the appointment process more transparent. For such a purpose, he was not afraid to innovate.”

For Barrister Ali Tahir, Justice Mansoor Ali Shah “is a judge who has authored great liberal jurisprudence in Supreme Court verdicts whether it be the freedom of speech, or women’s rights, or environmental rights, or rights for the differently abled.”