THE Supreme Court may have pushed back an attempt to undermine the independence of the judiciary by quashing a malicious presidential reference against a fellow judge, but the threat is still looming. Although the court has cleared Justice Qazi Faez Isa of charges of misconduct, the battle is still on. A vengeful government is not willing to take the humiliation lying down.
Justice Isa’s case has exposed the fascistic methods used to intimidate an upright judge. There have been many instances in the country in the past when judges were sent home by military governments. But there is no example of a judge being falsely implicated for wrongdoing and subjected to a media trial. For sure, the presidential complaint was an attempt to tarnish Justice Isa’s reputation and intimidate the judiciary.
The presidential reference had become a test for the judiciary. The case had turned into a battle between the executive and the bar. For the first time in the country’s history all four high court bar associations as well as the Supreme Court Bar Council became a party in the petition against the reference.
The charge against Justice Isa that his family owned undeclared foreign properties had fallen flat after his wife’s testimony. The court’s short order may not have fully satisfied the bar, but the quashing of the presidential reference is indeed a triumph of the struggle for the independence of the judiciary as it is for Justice Isa.
It was hardly a coincidence that a reference was filed against Justice Isa just months after his landmark ruling in the Faizabad dharna case in February 2019. The ruling was a damning indictment of the dubious role of the security establishment’s involvement in the 2017 siege. The illegal action by a radical religious group that had paralysed the capital for more than two weeks had led to the virtual collapse of civilian law enforcement.
The move against a judge of the country’s top court cannot be seen in isolation.
The verdict blamed the intelligence agencies for not stopping the illegal protests. Instead, when “participants received cash handouts from men in uniform, the perception of their involvement gained traction”. The ruling, citing the Asghar Khan case, particularly pointed to the apparent involvement of the top intelligence agency and of members of the armed forces in politics, media and illegal activities.
Predictably, the indictment evoked a strong reaction from the security establishment. The role of the intelligence agencies in political manipulation and their alleged involvement in the Islamabad siege had widely been criticised by civil society and political parties. But such a strong warning by the Supreme Court against the security establishment meddling in politics was rare.
It is not for the first time that Justice Isa had ruffled the feathers of those in power. As a member of the Supreme Court commission on the 2016 terrorist bombing in Quetta that killed dozens of lawyers, he had castigated the security agencies and the then federal home minister Chaudhry Nisar for soft-peddling on outlawed terrorist groups.
Not only the defence ministry but also the PTI and the MQM asked for a review of the court’s ruling in the Faizabad case. Meanwhile, a campaign against the verdict and Justice Isa was unleashed on social media and some TV channels. It was unprecedented for a Supreme Court judge to be subjected to a vicious media trial for his ruling.
Soon, a presidential reference against the judge was filed over ‘undisclosed assets’. The government’s mala fide intent was obvious. President Arif Alvi’s letter to the Supreme Judicial Council was intentionally leaked to the press, an action perceived as causing irreparable damage to the institution. For many observers, making the charges public was an attempt to influence public opinion against the judge.
Interestingly, the entire case against Justice Isa for his family owning properties in Britain was based on the investigation by the newly formed Asset Recovery Unit, headed by Shahzad Akbar, special assistant to the prime minister on accountability.
Shahzad Akbar, the government’s hatchet man, is said to have received initial information about the foreign assets through some obscure journalist. That makes the inquiry more dubious. Moreover, it is strongly argued that the ARU is not legally authorised to conduct this kind of investigation against a Supreme Court judge. That has also led to allegation of surveillance of judges by intelligence agencies. The spying, it seems, has never been so brazen.
The move against a judge of the country’s top court cannot be seen in isolation. It is true that Justice Isa has been targeted because of his uprightness; it also seems to be part of a move to bring the whole judiciary under pressure, although some observers see the judiciary as not being totally independent. It appears that the government and the establishment cannot tolerate any assertion of judicial oversight.
An orchestrated media campaign against Justice Isa has continued despite the Supreme Court verdict. Many have concluded that a major goal could be to prevent him from becoming chief justice in 2023. Such an objective could prove disastrous for the rule of law.
The independence of the judiciary is as significant for the smooth running of the state as is the independence of the legislature and executive. The protection of rights and adherence to the rule of law in a society are only possible through the independence of the judiciary. An independent judiciary that underpins the rule of law is essential to the functioning of democracy.
Unfortunately, we now seem to be seeing increasing and worrying attempts by the government and the establishment to use their leverage to influence and instruct the judiciary and undermine judicial independence. No institution, however powerful it may be, is above the law. The warning that Justice Isa had delivered in his ruling last year regarding the interference of the security establishment in political manipulation must be heeded for the sake of political stability and for strengthening the democratic process in the country.
This country has paid a huge cost for extra-constitutional interventions. History’s lessons must never be forgotten. All state institutions must strictly follow the Constitution. An independent judiciary is indeed the bedrock of democracy.
The writer is an author and journalist.
Published in Dawn, June 24th, 2020