<\/p>\n
Justice Isa\u2019s tenure as a jurist has been marked by a commitment to upholding democratic values, progressive Islamism and the rule of law.<\/p>\n
\n\n\u201cHope springs eternal in the human breast.\u201d \u2014 Alexander Pope<\/p>\n<\/blockquote>\n<\/blockquote>\n
Justice Qazi Faez Isa, poised to assume the role of Pakistan\u2019s 29th chief justice today, has courted both admiration and controversy throughout his illustrious legal career. From his early life to his ascent to the highest echelons of Pakistan\u2019s judiciary, his journey has been marked by significant events and decisions that have left an indelible mark on the country\u2019s legal landscape.<\/p>\n
Early life and legal foundation<\/h2>\n
Justice Isa\u2019s background is steeped in privilege. Born into a Sunni family with a rich political legacy, his father played a prominent role in the All-India Muslim League and later served as Pakistan\u2019s ambassador, while his mother was actively involved in various social organisations. However, his roots are also tied to the persecuted Hazara community, providing him a unique perspective into Pakistan\u2019s complex socio-political fabric.<\/p>\n
Educated at prestigious institutions such as the Karachi Grammar School and Aitchison College in Lahore, Justice Isa\u2019s academic journey laid the foundation for his future legal career. He later pursued his legal studies abroad.<\/p>\n
On returning to Pakistan, he entered the legal profession, eventually becoming a partner at RIAA<\/a>, one of the nation\u2019s top-earning law firms. Justice Ayesha Malik, the first female Supreme Court justice, was also a partner at RIAA.<\/p>\n
This corporate legal practice, primarily based in Karachi, was lucrative but differed significantly from the litigation-focused careers of many other judges.<\/p>\n
In 2009, Justice Isa was appointed chief justice of the Balochistan High Court (BHC). The appointment came in the wake of the Supreme Court decision,<\/a> declaring the actions of Gen Pervez Musharraf on Nov 3, 2007, unconstitutional and illegal.<\/p>\n
What made this move particularly remarkable is Justice Isa\u2019s limited prior connection to Balochistan. His upbringing, schooling, and legal practice were primarily centred in Karachi and abroad, making his direct elevation to a province\u2019s chief justice office quite unconventional.<\/p>\n
During his tenure in Balochistan, Justice Isa dealt with numerous cases that allowed him to further develop his judicial philosophy. This experience prepared him for his subsequent elevation to the SC in September 2014, where he would continue to make significant contributions to jurisprudence in Pakistan.<\/p>\n
Controversial roles, courageous actions<\/h2>\n
Over the years, the chief justice-designate has garnered attention and controversy as an inquiry commissioner in various high-profile incidents.<\/p>\n
Memogate Commission:<\/strong> As head of the Memogate Commission,<\/a> Justice Isa investigated the scandal that emerged in 2011 when Mansoor Ijaz revealed a secret memo allegedly authored by Hussain Haqqani, the then-US ambassador. The memo sought US intervention to prevent a potential military coup against the civilian government. Justice Isa\u2019s commission submitted a report, accusing Haqqani of treason and disloyalty, a move seen by many as an attempt to undermine the elected government\u2019s authority.<\/p>\n
Commission on the assassination attempt on Justice Khawaja Sharif:<\/strong> Justice Isa led the inquiry commission on the assassination attempt on Justice Khawaja Sharif<\/a>, investigating a plot against the chief justice of the Lahore High Court (LHC) in 2010. The commission found that the plot was fabricated by individuals, including Dr Tauqir Shah, who later served as the principal secretary to Prime Minister Imran Khan. Justice Isa\u2019s strong condemnation of Dr Shah as an \u201cincorrigible liar\u201d and a \u201cman of little character and credibility\u201d remains noteworthy. This history raises concerns about governance, integrity, and potential conflicts of interest as Justice Isa prepares to don the cloak of the Chief Justice of Pakistan (CJP).<\/p>\n
Quetta Bombing Commission:<\/strong> Justice Isa investigated the tragic events of August 2016 when a suicide bomber targeted lawyers in Quetta<\/a>. His report<\/a> candidly pointed out the security establishment\u2019s failures and government agencies\u2019 negligence in combating terrorism. Justice Isa emphasised the importance of enforcing existing laws to ensure justice and security for all Pakistanis.<\/p>\n
Audio Leaks Commission:<\/strong> Justice Isa\u2019s leadership of the Audio Leaks Commission<\/a> has been contentious. Formed by the PDM-led government, the commission aimed to investigate audio recordings allegedly involving judicial figures. While some expected Justice Isa to exercise caution, he embraced the role.<\/p>\n
The commission\u2019s proceedings faced legal challenges, including a constitutional petition. Justice Isa continued the proceedings despite the suspension, highlighting issues with the commission\u2019s formation and its impact on CJP Bandial.<\/p>\n
Landmark judgments<\/h2>\n
Justice Isa is a prolific judge known for his meticulously researched, lengthy judgments that draw from a wide range of academic sources. Despite being assigned relatively fewer cases involving substantial legal and constitutional matters in recent years, he has produced a substantial body of work, although his talents have been underused by three chief justices. His judgments consistently address important issues, including preventing the misuse of state resources, protecting the environment, combating religious extremism, defending minority rights, advancing women\u2019s inheritance rights, advocating for freedom of information, and upholding judicial independence.<\/p>\n
He has left an indelible mark on Pakistan\u2019s judiciary through his landmark judgments, displaying remarkable courage in the face of significant consequences. While he has authored numerous judgments, we will focus on four key cases that underscore his unwavering commitment to justice and constitutional principles:<\/p>\n
Balochistan suo motu<\/em> on Hazara killings:<\/strong>
\nOne of the most striking moments in Justice Isa\u2019s career was his suo motu<\/em> notice<\/a> on the gruesome killings of 26 Hazara community members by the banned terrorist group Lashkar-i-Jhangvi. This landmark case not only demonstrated his commitment to justice but also outlined essential principles for suo motu<\/em> proceedings. Justice Isa emphasised that citizens shouldn\u2019t have to file applications when fundamental rights are violated or when they fear retaliation. He argued that high court chief justices could initiate such actions, even based on media reports.<\/p>\nSuo motu<\/em> on killings of nationalists:<\/strong>
\nShortly after becoming the chief justice of Balochistan, Justice Isa issued a groundbreaking suo motu<\/em> order in 2009,<\/a> following the killings of three Baloch nationalist leaders. The killings triggered significant unrest and violence in the region. Remarkably, Justice Isa\u2019s order went beyond conventional expectations as he directed the Inter-Services Intelligence (ISI) and Military Intelligence (MI) to fully cooperate with the police in their investigation of the murders. This bold move was prompted by complaints from a police officer about the intelligence agencies\u2019 lack of cooperation with the probe, setting a precedent for accountability and transparency.<\/p>\nFaizabad Dharna suo motu<\/em> judgment:<\/strong>
\nJustice Isa\u2019s most courageous and consequential verdict arose from the Faizabad dharna<\/em>, a violent protest by Tehreek-i-Labbaik Pakistan (TLP) in 2017. Recognising the significance of the crisis, he initiated suo motu<\/em> proceedings to investigate various state functionaries\u2019 roles during the protest. In this groundbreaking judgment<\/a>, Justice Isa made several significant findings:<\/p>\n\n
- \n
Clarification of declaration:<\/strong> He clarified that the change in the declaration\u2019s wording was a clerical error, dispelling misconceptions.<\/p>\n<\/li>\n
- \n
Violation of fundamental rights:<\/strong> The protest violated citizens\u2019 fundamental rights, including the right to life, dignity, and equality.<\/p>\n<\/li>\n
- \n
Government\u2019s failure<\/strong>: The government failed in its constitutional
\nduty to protect citizens and maintain public order.<\/p>\n<\/li>\n- \n
Illegal agreement:<\/strong> The agreement brokered by armed forces ending the protest was deemed illegal and unconstitutional.<\/p>\n<\/li>\n
- \n
Intelligence agencies\u2019 and armed forces\u2019 role:<\/strong> Justice Isa questioned the
\ndubious role of state agencies, including the ISI, in failing to
\ncounter the threat of violent extremism posed by TLP and other
\nunscrupulous actors. He noted his disappointment in the way ISI
\nallegedly interferes in matters of political significance. He noted
\nthat military agencies should never be perceived to support a
\nparticular political party. The judgment pointed out the
\nconstitutional role of armed forces and noted that the honour and
\nesteem of those who sacrifice their lives for the country should
\nnever be undermined by the illegal actions of a few.<\/p>\n<\/li>\n- \n
Media influence:<\/strong> Media and social media played a detrimental role by spreading false information and inciting violence.<\/p>\n<\/li>\n<\/ul>\n
Justice Isa\u2019s verdict displayed unprecedented courage:<\/p>\n
\n
- \n
Confronting powerful actors:<\/strong> He fearlessly confronted political
\nelites, the military establishment, and religious groups.<\/p>\n<\/li>\n- \n
Upholding constitutional supremacy:<\/strong> The judgment upheld
\nconstitutional supremacy and the rule of law.<\/p>\n<\/li>\n- \n
Raising public awareness:<\/strong> It educated citizens on critical issues
\naffecting Pakistan\u2019s stability and democratic values.<\/p>\n<\/li>\n<\/ul>\nNAB vs Hudaibiya Paper Mills:<\/strong><\/p>\n
Amid Pakistan\u2019s turbulent political landscape, Justice Isa\u2019s judgment in the Hudaibiya Paper Mills case<\/a> was widely acclaimed to be both legally sound and bold. The case revolved around the National Accountability Bureau (NAB)\u2019s delay in challenging an LHC judgment.<\/p>\n
Justice Isa noted that the NAB\u2019s petition should have been filed within the 60-day limitation period, but was instead sought after a delay of 1,229 days. He emphasised the importance of fundamental rights, like a fair trial and due process, and refused to condone the delay. This decision reaffirmed the principle that individuals cannot indefinitely await a prosecuting agency\u2019s discretion, which could turn prosecution into persecution.<\/p>\n
These landmark cases collectively showcase Justice Faez Isa\u2019s commitment to justice, constitutional supremacy, and the rule of law. They also highlight the personal and professional challenges he faced as a result of his principled stands, including a presidential reference, persecution, and internal judicial divisions.<\/p>\n
Petition, presidential reference and the review judgment<\/h2>\n
In 2019, President Arif Alvi filed a reference against Justice Isa, alleging misconduct and non-disclosure of foreign assets, particularly his family\u2019s properties in the UK. The reference was widely seen as an effort to silence him, especially after his significant role in the Faizabad sit-in case in 2019.<\/p>\n
Justice Isa challenged the reference, leading to its dismissal by the SC<\/a> as unconstitutional and based on false information. However, the matter was referred to the Federal Board of Revenue (FBR), leaving uncertainties.<\/p>\n
A pivotal moment came on April 26, 2021, when the SC issued a historic review judgment,<\/a> accepting petitions against its previous decision on the first reference. This courageous stand in favour of constitutional supremacy and the rule of law was hailed as a victory for judicial independence, despite facing opposition from influential groups.<\/p>\n
During the review process, Justice Isa and his wife personally defended their cases, facing scrutiny and occasional harassment. Despite these challenges, their pursuit of justice garnered support from legal experts, civil society, and human rights advocates.<\/p>\n
In essence, the presidential reference and the subsequent review judgment emphasise the need to balance judicial accountability with safeguarding judicial independence. Transparent, fair mechanisms for holding judges accountable are vital to ensure Pakistan\u2019s judiciary remains strong and impartial.<\/p>\n
Balancing act<\/h2>\n
Justice Isa\u2019s tenure as a jurist has been marked by a staunch commitment to upholding democratic values, progressive Islamism, and the rule of law. His judicial philosophy, while intricate, offers insights into his vision of a democratic, pluralistic, and welfare-oriented state, largely consistent with the ideals of Pakistan\u2019s founder, Muhammad Ali Jinnah.<\/p>\n
1. Democracy and constitutionalism<\/strong><\/p>\n
Civilian supremacy and constitutional integrity<\/strong><\/p>\n
Justice Isa is perceived as a strong advocate for civilian supremacy in Pakistan and upholding the role of the armed forces within the constitutional framework. He firmly believes in the sovereignty of civilian institutions.<\/p>\n
Example 1: Opposition to military interference<\/em><\/p>\n
Justice Isa took a principled stand against military involvement in politics during the proclamation of emergency by Musharraf in 2007. He refused to appear as an advocate before judges who violated their oath to preserve and protect the Constitution.<\/p>\n
Example 2: Opposition to trial of civilians by military court<\/em><\/p>\n
In his dissenting opinion in the District Bar Association Rawalpindi vs Federation of Pakistan (PLD 2015 SC 173), Justice Isa argued against military courts conducting judicial trials of civilians and recused himself from the bench,<\/a> emphasising the importance of a separation of powers and an independent judiciary.<\/p>\n
Example 3: Challenging the Faizabad agreement<\/em><\/p>\n
Justice Isa challenged the legality and morality of the 2017 Faizabad agreement between the government and the TLP,<\/a> which was brokered by the Director-General of ISI. His stance emphasised the need to prevent undue interference by intelligence agencies in civilian affairs, preserving the democratic process.<\/p>\n
Example 4: Addressing parliament on the 50th anniversary of the Constitution<\/em><\/p>\n
On the 50th anniversary of the Constitution, Justice Isa accepted the invitation to address the parliament.<\/a> At a time of political tension between the federal government and the CJP, he chose to appear in parliament, despite facing accusations of bias. His presence, while controversial at the time, signified support for the democratic process.<\/p>\n
Example 5: Fair distribution of land and financial responsibility<\/em><\/p>\n
Justice Isa advocates for civilian supremacy and a limited role for the armed forces, strictly confined to their constitutional duties.<\/p>\n
He raised concerns about the distribution of land to judges and members of the armed forces,<\/a> highlighting that this practice is not governed by law<\/a> and constitutes discrimination. He pointed out that public land should not be granted unfairly to one group while disregarding civilians in the service of Pakistan. Additionally, he highlighted the financial burden of pension payments and debt servicing, calling for a fair and transparent distribution of resources.<\/p>\n
Stance on missing persons and human rights<\/strong><\/p>\n
Justice Isa has been a strong advocate for missing persons in Balochistan, particularly cases of enforced disappearances and extrajudicial killings. During his tenure as chief justice of the BHC, he took proactive steps to address this issue.<\/p>\n
He initiated suo motu cases in numerous instances<\/a> involving missing persons, issuing notices to state functionaries to investigate and resolve the cases. His commitment was evident as he sought to ensure the safe return of missing individuals or their immediate release.<\/p>\n
An early example of his involvement was a suo motu<\/em> action in response to the killings of three Baloch nationalist leaders in April 2009. This included directing intelligence agencies, such as the MI and ISI, to cooperate with the police in investigating these murders, holding them accountable.<\/p>\n
During his tenure, a significant number of missing persons were reportedly released by security agencies<\/a>, reflecting his dedicated efforts. He also designated a specific day in the BHC to address missing persons\u2019 cases and continued to take suo motu actions in cases involving the abductions of lawyers, emphasising his commitment to resolving this pressing issue.<\/p>\n
2. Progressive Islamism and its role in jurisprudence<\/strong><\/p>\n
Justice Isa\u2019s jurisprudence is perceived to be rooted in a progressive interpretation of Islam. He consistently draws upon Islamic jurisprudence, references Islamic texts, and cites the \u2018Objective Resolution\u2019 (Article 2A of the Constitution) to underpin his judicial arguments. His interpretation of Islam aligns with the belief that it can be a powerful tool for establishing a just and pluralistic society.<\/p>\n
Women\u2019s rights and Islamic references<\/em><\/p>\n
One prominent aspect of Justice Isa\u2019s Islamic perspective is his advocacy for women\u2019s rights within an Islamic framework. He frequently references Islamic principles to advance the cause of gender equality and his judgments often contain Islamic references to advocate for women\u2019s property rights<\/a>, inheritance<\/a>, and girls\u2019 access to education<\/a>.<\/p>\n
For instance, he emphasised women\u2019s inheritance rights, stating, \u201cIslam recognises the right of inheritance of women,\u201d and used Islamic law to challenge those who seek to deprive women of their rightful shares.<\/p>\n
Environmental protection rooted in Islam<\/em><\/p>\n
Justice Isa\u2019s commitment to environmental protection is also rooted in his interpretation of Islam. He invokes Islamic teachings on the balance of nature and humanity\u2019s role as stewards of the Earth. In the Houbara Bustard Hunting Case<\/a>, he ruled that it is the divine duty of the people of Pakistan to protect endangered species, referencing Islamic principles against cruelty to animals and linking them to constitutional rights.<\/p>\n
3. Curbing religious extremism and promoting tolerance<\/strong><\/p>\n
There are also many other examples of Justice Isa\u2019s commitment to curbing religious extremism and promoting tolerance:<\/p>\n
Countering religious extremism with Islamic teachings<\/strong><\/p>\n
In various cases, such as the Faizabad Dharna Case, the Hazara Killings Suo Motu Case, and Quetta Commission Report, Justice Isa invokes Islamic teachings to denounce extremist ideologies and violence. In the Faizabad Dharna case, for example, he lamented the divergence between the actions of some who claim to love Prophet Muhammad (PBUH) and the virtuous life he led, stating, \u201cviolating the law, occupying public roads, restricting the movement of people, destroying property, and causing death and injury is unbecoming of bearers of the Muslim faith.\u201d<\/p>\n
Protection of religious minorities through Islamic principles<\/strong><\/p>\n
After the Jaranwala incident, where a Christian neighbourhood was attacked by mobs, he issued a statement<\/a> referencing Quranic injunctions to condemn the attackers, quoted verses from the Holy Quran and said that Muslims were told to fight against those who harmed churches.<\/p>\n
He highlighted that faith in Prophet Isa was one of the principles of Islam and recalled events from history where Muslim religious leaders had shown respect to Christianity.<\/p>\n