Historic turnaround

Published April 28, 2021

A MANIFESTLY ill-intentioned legal saga has come to a close in a historic turnaround. In a 6-4 majority decision, the Supreme Court on Monday accepted all the review petitions, except one filed by Justice Qazi Faez Isa himself, against its verdict on June 19, 2020, in the presidential reference against the judge.

Specifically, the petitions concerned the bizarre directions in the earlier judgement — which had otherwise quashed the reference as being “tainted” — ordering the FBR to conduct an inquiry into offshore properties owned by Justice Isa’s wife. Those directions have now been “recalled and set aside”, and all steps taken in response to them declared “illegal and without any legal effect”. For the Supreme Court to review its decisions is rare, and it is rarer still when a 10-member bench had passed the original decision. The significance of this development cannot be overstated. It is far more than a resounding victory for the apex court judge: it is a triumph of the rule of law and constitutionalism when they seemed to be on increasingly shaky ground.

Read: 'Historic judgement': Lawyers, analysts react to SC ruling on review petitions in Justice Isa case

Judicial reviews are usually sedate proceedings where only points of law regarding the original verdict are discussed. In this case however, the bench undertook a broader examination of the case, going back to the impetus behind the presidential reference itself. Over the course of the proceedings, a sharp divide among the superior judiciary became evident, most notably when the judges differed over the amount of time allowed the government lawyer to present his arguments. While dissent among judges helps in shaping the law and adding nuance to judgements, such a division can also suggest deeper tensions at play. Allowing one of their brother judges to be unjustly persecuted would have left the judiciary as a whole vulnerable; that the majority opinion was converted into a minority one indicates that this view — and perhaps conscience — prevailed in the end.

The verdict also serves as an object lesson for those who tried to pervert the law and the concept of accountability to malign and excise from the bench a judge unafraid to call them out for their excesses. One need only glance through the Faizabad sit-in judgement to understand the genesis of the presidential reference. For the government, clearly willing to go any distance required to stay on ‘one page’ — even to the extent of risking a schism within the highest court in the land — the denouement is an unalloyed debacle, leaving behind a stain it will find difficult to wash away. This was not a matter about one individual, but about silencing an institution that performs as a check and balance on the exercise of power. Among the myriad takeaways to be gleaned from the verdict, one of them is this: resistance to coercive tactics is growing, in civil society, media and the legal fraternity. But will anyone take heed?

Published in Dawn, April 28th, 2021

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