“The measure of a man is what he does with power” — Plato

“If you can’t stand the heat, get out of the kitchen” — CJP Qazi Faez Isa

IMAGINE if after a career-defining struggle a judge reaches the pinnacle of his profession. And within four months of this peak, his stature is reduced to the extent that the only major difference of opinion amongst lawyers who have witnessed his conduct in court is whether he is an agent or merely a pedant.

After a first-day full-court intent on putting matters right, the things retired chief justice Qazi Faez Isa did not do are perhaps as telling as the things he did. Peshawar High Court chief justice Waqar Seth had declared hundreds of military trials to be shambolic and the continued internment of citizens illegal. The Supreme Court under Umar Bandial suspended this judgment; but it was not listed under CJP Isa. The Balochistan High Court declared that the land given to DHA was illegally allotted. This judgment was also suspended, but was again not listed under CJP Isa.

The legality of the military courts remains undecided and dozens of civilians continue in military custody. When Baloch activist Mahrang Baloch marched to the capital with women and children protesting against enforced disappearances, the top judge did not notice that they were assaulted, water-cannoned and beaten back home.

To see or not to see was almost always the question. He couldn’t see when the caretaker set-up exceeded its constitutional mandate under his watch. He didn’t question the Election Commission’s clear contempt of the Supreme Court ordering elections in KP and Punjab. But he could see overreach when petitioned in the public interest by a real estate developer who alleged an ISI chief had used his authority to raid his home. The allegation was against Faiz Hameed, the architect of the campaign against the judge.

Later in November, he could not see any standing to sue when he refused to hear a public interest petition on the overall issue of missing persons because he felt this was an individual’s personal grievance. Towards the end of this busy month, the registrar of the Supreme Court rejected a petition against the illegal and abrupt deportation of thousands of Afghan settlers, noting that the petition didn’t raise a question of fundamental rights.

With retired CJP Isa, to see or not to see was almost always the question.

Then came Jan 13; the CJP couldn’t see that the ECP had a peculiar interest in the PTI. The party was denied its electoral symbol, and the decision rendered was vague enough and rendered late enough (on the night of the deadline) to cause chaos amongst the last-day filers for the upcoming election. The ECP used it to deny the PTI its status as a political party, and sowed enough confusion for it all to become relevant when the PTI candidates, who won anyway, asked for the reserved seats to be allotted to their party.

It was during the hearing related to reserved seats that CJP Isa admitted that the idea that the PTI was no longer a political party was a misinterpretation of his order by the ECP. It was a misinterpretation that could have been avoided with one line of clarity in the original order itself, or by way of a simple press release.

When it was argued before CJP Isa that the harassment of PTI members in the run-up to the elections was being reported by the media, he claimed he did not watch television news. He didn’t know who Fayyaz ul Hassan Chohan or Imran Riaz Khan were when told they were missing or abducted, but did recognise Akbar S. Babar as a founding member of the PTI. In the Monal restaurant case, he was able to perceive that the owner’s relationship with a federal secretary afforded influence over government decision-making.

There was a time when he would refer to WhatsApp forwards in judicial orders arguing that development funds might have been misused by PTI MNAs and an inquiry was appropriate. As chief he took suo motu action against illegal tree-cutting. But when Barrister Gohar of the PTI at the podium said his house had just been raided and his family assaulted, he felt this was an issue for the police to handle and moved on.

Donald Rumsfeld had known unknowns. The CJP had seen unseens. When the Supreme Court suspended the reserved seats awarded by the ECP to everyone but the PTI in May 2024, he apparently wanted to form a bench which comprised everyone who would not be chief justice. He could see that the reserved seats case would determine the government’s ability to effect a constitutional amendment which related to chief justices.

Much later, after a first attempt at passing the amendment had failed, he apparently could not see the link between his reversing the 63-A floor crossing judgment in review and how it would open the door for the government to coerce opposition lawmakers because he didn’t know of any constitutional amendment being in the works.

When six judges of the Islamabad High Court wrote to complain about finding cameras in their bedrooms and their parents being abducted and stood before them in the dark of the night, CJP Isa wanted to know who wrote the letter and questioned them one by one. He then wanted to ask the prime minister to have it all investigated. He wanted to make clear these incidents were from before he became chief. Under his watch, covert mission creep became a constitutional amendment.

On his retirement reference, Sardar Tariq Masood spoke of how on the Day of Judgment, the fair-minded judge would be blessed with the comfort of standing in the shadow of the Creator. If I ever become a judge and do what CJP Isa managed for the past year, I would pack a hat.

The writer is a lawyer.

X: @jaferii

Published in Dawn, October 26th, 2024