Analysis: Revisiting the Faizabad Dharna case

The Faizabad Dharna case judgement provides an opportunity for Pakistan to reaffirm its commitment to its founding principles and pave the way for a brighter, more accountable future.
Published September 28, 2023

In the intricate web of Pakistan’s legal landscape, few cases have left as profound an impact on the nation’s judicial and political narrative as the Faizabad Dharna case. As the review petition is finally taken up by the Supreme Court, it is essential to revisit the unprecedented nature of this case and explore the potential consequences and pathways it may lead to.

The Faizabad Dharna case emerged from the prolonged and contentious sit-in staged at Islamabad’s Faizabad interchange in 2017. The protest itself started out as a political stand-off, but soon evolved into a litmus test for the resilience of democratic institutions, the sanctity of the Constitution, and the boundaries of freedom of expression.

In the wake of the stand-off, the SC initiated a case under its suo motu jurisdiction, which allows the court to take cognisance of matters on its own volition, usually in cases of public importance or violation of fundamental rights. In such cases, however, the review jurisdiction before the SC is exceedingly limited, and the judgement is unlikely to be substantially altered or overturned.

Unprecedented aspects of the Faizabad Dharna case

A judge takes on the establishment

The political context of the Faizabad Dharna case cannot be overstated.

At the time, Nawaz Sharif, a three-time elected prime minister, had been disqualified, and preparations were underway for his imprisonment. Political parties were undergoing significant changes, with one being dismantled and another, the PTI, enjoying robust support.

Much of the superior judiciary and media had largely aligned with the establishment’s narrative. Even the elected governments at the time of the Dharna, led by Shahid Khaqan Abbasi at the Centre and Shehbaz Sharif in Punjab refrained from challenging the establishment’s dominance, which extended to religious extremists.

Justice Qazi Faez Isa’s verdict came at the peak of this hybrid experiment, with a new prime minister cementing the ‘same page’ between the executive and the establishment. The judiciary itself had become an active participant in this collaboration. Notably, Justice Shaukat Aziz Siddiqui, a high court judge, had previously been removed from office by his peers when he exposed pressure from the establishment and the Inter-Services Intelligence (ISI).

In this charged atmosphere, religious extremists affiliated with the Tehreek-i-Labbaik Pakistan (TLP) roamed the streets, inciting and committing acts of violence. Under these circumstances, taking a stance against the establishment, questioning the executive, critiquing mainstream political parties, including the PTI, and even scrutinising the judiciary was an extraordinary act of courage, given the formidable forces aligned against such dissent.

Judgement against generals in power

Unlike previous cases where judgements against military generals came after they were removed from power, this verdict targeted the current dispensation of the military establishment.

Previous cases, such as the declaration against Yahya Khan in the Asma Jillani case, the judgement against General Aslam Baig in the Air Marshal Asghar Khan case, and the direction for initiating a treason trial against General Musharraf in the PCO judges case, had all been heard after the military officials’ respective tenures.

In contrast, this decision was delivered while the military had become an even more dominant force in Pakistan’s political landscape, and the generals had been promoted, marking a significant departure from established norms of holding generals accountable only after their removal from office.

Tackling the role of armed forces and intelligence agencies

One of the most striking aspects of the judgement was its unflinching examination of the roles played by the armed forces and intelligence agencies, including the ISI and Military Intelligence (MI). The judgement did not shy away from these critical issues and addressed them head-on.

Justice Isa questioned the role of state agencies, particularly the ISI, in failing to counter the threat of violent extremism posed by groups like the TLP and others. He expressed disappointment in the alleged interference of ISI in matters of political significance, highlighting that military agencies should never be seen as supporting any particular political party. The judgement underscored the importance of armed forces adhering to their constitutional role and maintaining their integrity.

Additionally, the judgement provided specific directions for initiating action against members of the armed forces who had violated their oaths and ventured into political activities. It also called for bringing intelligence agencies under legal frameworks.

Support for civilian institutions

The Faizabad Dharna case judgement extended support to civilian institutions, such as the Pakistan Electronic Media Regulatory Authority (Pemra) and the Election Commission of Pakistan. It aimed to shield these institutions and the media from undue influence by intelligence agencies. This emphasis on safeguarding a free press and independent institutions is crucial for upholding democratic principles.

A direct challenge to religious extremism

The judgement took a bold stance against religious extremism and bigotry propagated by groups like the TLP. It did not mince words and issued strong directives to counter religious extremism. This resolute approach highlighted the judiciary’s commitment to curbing radicalism and preserving social harmony.

Consequences and potential pathways

The Faizabad Dharna case and its subsequent developments have far-reaching consequences for Pakistan’s judicial, political, and broader landscape.

Impact on Justice Isa and the judiciary

It is no secret that Justice Isa and his family went through a tough time, courtesy of the establishment, sometimes with a little help from his fellow judges. Even Prime Minister Imran Khan eventually admitted that the reference against Justice Isa was a mistake pushed by the establishment’s agenda. But what’s even more striking is the massive split it caused within the apex court.

This internal bickering seriously dented the SC’s reputation and authority. To put this into perspective, by the end of Chief Justice Umar Ata Bandial’s term, he found it increasingly challenging to enforce his orders related to the general elections.

These divisions didn’t just stay within the court’s walls — they had significant consequences for civil liberties in Pakistan, especially post-May 9. Today, court orders are often brushed aside, and even the most ancient legal safeguard, habeas corpus, doesn’t hold much weight in politically charged cases. This erosion of the court’s authority and the impact on civil liberties paints a vivid picture of how the Faizabad Dharna case left its mark on Pakistan’s legal and political landscape.

Implementation of the judgement: Confrontation with the establishment

One possible path forward involves Justice Isa insisting on the implementation of his judgement. This would entail taking action against members of the armed forces who violated their oaths. Such a move could lead to a direct confrontation with the establishment.

However, direct confrontation may jeopardise Justice Isa’s ability to address other critical matters and pursue his reform agenda effectively. It could also provide opportunities for the establishment to find collaborators within the judiciary. This path is rife with challenges, as it could lead to a protracted and divisive battle.

Navigating the complexities of holding generals accountable

The Musharraf treason trial serves as a poignant reminder of the intricate and multi-faceted consequences that pursuing accountability, particularly involving retired generals, can entail for politics, democracy, and the judiciary.

This watershed moment in Pakistan’s history, where a former military ruler was held accountable for subverting the Constitution, resulted in significant political upheaval, including the removal of prominent figures like Nawaz Sharif from office and the mysterious demise of a high court judge, Chief Justice Waqar Seth, involved in the trial.

As discussions about holding retired generals like General Bajwa and General Faiz Hamid accountable persist, the Musharraf trial offers valuable insights into the complexities and potential risks associated with such endeavours, emphasising the need for a cautious and transparent approach to safeguard democratic principles and the rule of law.

Balancing act: Avoiding confrontation

On the other hand, if Justice Isa opts to not push the matter to its ultimate conclusion, he may face accusations of compromising or backing down. This approach may seem pragmatic, as it avoids a direct clash with the establishment, but it risks undermining the pursuit of justice, accountability, and the credibility of the judiciary.

The imperative of truth

Regardless of the path chosen, Pakistan faces an undeniable imperative — the need for an honest reckoning or some form of truth and reconciliation. Addressing the underlying issues and acknowledging the proverbial elephant in the room — the military’s undue influence in politics—is crucial for Pakistan’s democratic progress.

Without such a reckoning, Pakistan’s democratic process will continue to face challenges, and civil liberties will remain at risk. It is a crossroads where Pakistan must choose to confront its past and chart a course towards a more accountable and just future, where institutions operate within their defined roles, and the rule of law prevails.

In the words of the founding father, Muhammad Ali Jinnah, Pakistan was envisioned to be based on “fundamental principles of democracy, not bureaucracy or autocracy or dictatorship.”

The Faizabad Dharna case judgement provides an opportunity for Pakistan to reaffirm its commitment to those principles and pave the way for a brighter, more accountable future. It is a moment of reckoning that cannot be skirted around, for the nation’s progress depends on addressing the principle contradiction it faces. All else is secondary.

Header image: Protesters hurl back a tear gas shell fired by police during a clash in the 2017 Faizabad Dharna. —AP