“If we want things to stay as they are, everything will have to change” — From ‘The Leopard’

HISTORY keeps on tragically repeating itself in Pakistan. The ruling elites’ witch-hunt against Justice Qazi Faez Isa in 2019 looks chillingly similar to the one against former chief justice Iftikhar Chaudhry in 2007. As the presidential reference against Justice Isa is pending before the Supreme Judicial Council (SJC), it is inappropriate to discuss the pros and cons of its content, but what can be examined is the context, causes and consequences of this politico-accountability move against a sitting Supreme Court judge.

Witch-hunt or accountability?: Judicial accountability is both the need of our times and unavoidable in 21st-century Pakistan.

Firstly, the imbalance between the tremendous power of the superior judiciary and the near absence of any accountability of such power is unacceptable.

Secondly, it is common knowledge in the legal community and among informed citizens that corruption, both financial and of illegal influence, has affected the Pakistani superior judiciary over the years. Sadly, we have previously had serious allegations of corruption even against former chief justices.

Thirdly, a post-2007 judiciary, whose legitimacy is based on public legitimacy and public support, will destroy this foundation of public legitimacy if it doesn’t hold itself accountable. It is precisely for this reason that since 2017, the SJC has begun a historic accountability process of superior court judges with numerous cases being decided or regularly processed.

So isn’t the present reference against Justice Isa simply an example of this process of judicial accountability? The answer seems to be an unequivocal ‘no’ and the institution of the reference looks more like a witch-hunt than part of an accountability process, for the following reasons.

Will the government succeed in subduing independent judges?

Firstly, Justice Isa is one of the foremost critics of the unconstitutional actions of the ruling elites especially the military elite, a critic of the mullah-state collusion and a sceptic of the accountability process especially against opponents of the current government. What an amazing coincidence that post-2008, the first presidential reference against a sitting Supreme Court judge is against a critic of the ruling elite.

Secondly, the Faizabad dharna judgement is a damning critique of the unconstitutional actions and inactions of the ruling circles, especially the military elite, and the role of the PTI. Multiple review petitions have been filed by numerous government departments against the judgement but the ruling elite clearly realises that review petitions are rarely successful. Therefore, what a coincidence that the Faizabad dharna judgement was announced on Feb 6, 2019, and within a couple of months, a presidential reference was filed against Justice Isa out of nefarious intentions to seemingly pressurise him, or have him removed, so that he does not hear these review petitions.

Thirdly, only last year, a mysterious petition questioning the appointment of Justice Isa as a judge was pursued in the Supreme Court but the latter recognising it as frivolous petition dismissed it. The present reference is a continuation of the earlier witch-hunt. But the larger purpose of this reference is to send a clear message to all independent judges — fall in line with the state’s unconstitutional designs or be prepared to be shipped out into the wilderness.

Causes and culprits: The root cause of the ruling elites’ conflict with independent judges is structural, ideological and strategic.

(a) Structural conflict: This is a power struggle between an emerging independent judicial elite and an established elite. It is a power struggle in Pakistan which begun after 1973, although the rise of judicial power, along with the rise of judicial constitutionalism and human rights, has been an ever-spreading global phenomenon since 1989.

(b) Ideological conflict: In this power struggle, the judges use the ideology of judicial constitutionalism and human rights to challenge the old elite. The latter comprises a political elite which wants power without judicial accountability, a military elite which wants its de facto domination legitimised and a capitalist elite which wants unregulated capitalist exploitation. Therefore, this is also a battle for ideas and solutions. For the political elite, the panacea is politics, for the military elite, it is security and for the judiciary it is judicial constitutionalism.

(c) Strategic conflict: The PTI, with its alleged backers in the deep state, has captured the political process, muzzled the media and is now eying the only institutional opposition left — independent judges. The latter by redressing the grievances of the opposition, media and citizens against the state can unravel the foundations of this government, which are built on shifting sands.

But what really made this present attack on Justice Isa possible is the return of the remnants of the Musharraf era. This present reference has been prepared by the law ministry and attorney general offices, whose current occupants have been closely associated with Musharraf and the anti-lawyers movement. These legal henchmen are the real executioners, who use references primarily as a psychological tool to tame the judges.

Will this witch-hunt succeed?: This government is on a suicide mission. With the state internationally isolated and financially bankrupt, with the cost of living becoming unbearable, with a continuous terrorism threat and a government unable to meet the basic standards of governance, only delusional elements in government can think they can successfully prosecute this reference. Therefore, I ask the government a basic question: can you succeed in subduing independent judges in which endeavour even the mighty dictator Musharraf at the height of his power failed miserably?

“The lesson to be learnt is that if the cause is constitutional and just then the strength and support for the same is received from the people at large who are the ultimate custodians of the Constitution,” wrote Justice Asif Saeed Khosa. It appears that Justice Isa’s constitutional struggle with popular backing is bound to give this government many sleepless nights.

The writer is a lawyer.

Published in Dawn, June 10th, 2019