Another Pandora’s Box: Who was behind Justice Isa reference?

In September 2023, Justice Qazi Faez Isa will become the new chief justice of Pakistan, and as this date inches closer, Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan further distances himself from the reference filed against the judge during his term in power.

Recently, Khan made a big disclosure, conceding that the establishment of that time had been involved in the filing of the reference against Justice Isa, and the order had come from a much higher level than that of the then-Inter-Services Intelligence (ISI) director general (DG) Lt Gen (retd) Faiz Hamid.

Khan’s disclosure not only sheds light on the helplessness of his government — issuing a charge sheet against the establishment — but also raises questions about the conduct of the apex judiciary.

This is because whatever action was initiated against Justice Isa was within the domain of the judiciary, which could have foiled this conspiracy had it desired.

Facts show that one chief justice after another, instead of supporting his brother judge, allegedly remained involved in this “conspiracy”.

This vindictive action was launched against Justice Isa after his judgment about the Faizabad sit-in as he pointed out the political agenda of the Tehreek-e-Labbaik Pakistan (TLP), the failure of the then-government, and the role of the establishment.

Since this judgment, successive chief justices have not allowed Justice Isa to become part of any bench hearing any important political and constitutional case.

Despite this situation, he is still the most senior and competent judge of the Supreme Court.

Moreover, successive chief justices have not just sidelined Justice Isa but also made sure that Justice Sardar Tariq Masood — considered a supporter of Justice Isa’s viewpoint — also does not get a chance of hearing important political and constitutional cases.

The most surprising aspect in this entire scenario is that the honourable judges who declared null and void the actions launched against Justice Isa on the Supreme Court’s orders were also sidelined one after the other.

There is a context to the action of sidelining Justice Isa by the successive chief justices of the apex court.

In January 2019, Justice Asif Saeed Khosa became the chief justice of the Supreme Court. In May 2019 the government filed a reference against Justice Isa.

The filing of the reference pitted Justice Khosa and Justice Isa against each other. Justice Isa levelled the allegation of biased conduct against Justice Khosa, after which Justice Isa pleaded with the court to form a full-court bench to adjudicate the presidential reference.

Later, a 10-member bench headed by Justice Umar Ata Bandial conducted a hearing on the presidential reference against Justice Isa.

However, a strange incident occurred during the tenure of Justice Gulzar Ahmed — the top judge who preceded Justice Bandial.

At the beginning of 2021, when Justice Isa took cognisance of the issue of the release of development funds by then-prime minister Khan, former chief justice Gulzar formed a five-member larger bench headed by himself.

This bench comprised Justice Mushir Alam, Justice Bandial, Justice Isa, and Justice Ijaz Ul Ahsan. However, on February 11, when the bench was hearing this case, Justice Bandial objected to Justice Isa’s ruling asking the former prime minister to respond to the court in his personal capacity.

Justice Bandial addressed the then-attorney general for Pakistan (AGP) and said: “Attorney general sahib, whether or not the prime minister was answerable in his personal capacity, the prime minister enjoys constitutional immunity. The PM is answerable to the court when the issue is related to him [PM]. In case the government is answerable, the PM cannot be questioned.”

Further, while addressing the former AGP, he added: “Make sure that no illegal order is issued.”

The issue worth highlighting is that during the same hearing, Justice Isa remarked that he didn’t know “whether or not the prime minister enjoys constitutional immunity on political steps”.

“The courts in the past used to summon the prime ministers,” he said.

Then chief justice Gulzar then interfered during the hearing and remarked: “We are not present here to control the Prime Minister’s Office as we are only disposing of this case. The prime minister and an honourable judge are opposing parties in a case.”

The judges included in the bench left the courtroom after these remarks by the chief justice.

Later, then chief justice Gulzar Ahmed issued an unprecedented order, restraining Justice Isa from hearing cases against the PTI chief.

Justice Gulzar had observed in his order that Justice Isa should not hear cases pertaining to Khan because he himself became a petitioner against Khan and it would be appropriate in the interest of justice that Justice Isa not hear cases such cases.

It is interesting that the former prime minister himself had not filed any complaint that Justice Isa be restrained from hearing his cases and no objection had been raised in this regard.

Another interesting incident of sidelining Justice Isa was when the judge took notice of the harassment of journalists in August 2021 after some media workers complained to him that some government departments were harassing them.

Justice Isa issued notices to the Federal Investigating Agency (FIA) and other law enforcement agencies. However, Justice Bandial — who took oath as acting chief justice of the Supreme Court on August 20, 2021 —suspended Justice Isa’s suo motu notice the following day. Instead, he constituted a larger bench to hear the matter. It was Justice Isa who administered the oath to Justice Bandial.

The larger bench comprised Justice Bandial, Justice Ijaz, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmed, and Justice Muhammad Ali Mazhar, and this five-member bench set aside Justice Isa’s suo motu notice, maintaining that only the top judge had the authority to take such notice of public interest issues and constitute benches of the apex court.

The larger bench had, however, agreed that there was an impression of imbalance while exercising such powers and suggested that the chief justice take steps to remove such a perception.

However, that imbalance was not addressed despite being pointed out by several judges of the apex court.

Recently, Justice Isa issued a judgment with regard to suo motu notices and held that such an exercise may be postponed until proper rules and regulations have been prepared by the apex court. This order was disregarded by the SC’s registrar through a circular.

Moreover, Chief Justice Bandial is seen defending his colleagues, standing by Justice Sayyed Mazahar Ali Akbar Naqvi despite the filing of several references against him. This was not the case for Justice Isa, who was not supported by any of his former or current colleagues.

In March 2023, Chief Justice Bandial remarked that the inclusion of Justice Naqvi in the bench was a “silent message”.

The CJP remarked: “I too have a heart and feelings, and if there is a tax matter, then ask the relevant officer to trace it. How could we conduct the trial of a judge over a tax matter?”

But, interestingly, the larger bench in the Justice Isa case, headed by Justice Bandial, directed that the wife of Justice Isa produce the source of income before the Federal Bureau of Revenue (FBR), and the authority was directed to submit a compliance report.

Later, however, six judges of the top court — Justice Maqbool Baqar, Justice Manzoor Ahmed Malik, Justice Mazhar Alam Miankhel, Justice Mansoor Ali Shah, Justice Yayha Afridi, and Justice Aminuddin Khan —modified Justice Bandial’s order and restrained the FBR from taking any action against Justice Isa and his family, quashing all proceedings.

Justice Bandial had written in a separate note in the presidential reference against Justice Isa that an apex court judge is answerable to the special forum which was constituted to probe allegations with regard to his misconduct.

Justice Bandial had observed that questions with regard to the source of funding for the purchase of properties were relevant and legal and judges were also answerable for their mistakes in the instant matter there was material that needed to be explained before the Supreme Judicial Council and it should be explained so that all suspicions raised on the apex court and Justice Isa could be addressed.

Now, questions are being raised over the conduct of another Supreme Court judge. The Pakistan Bar Council (PBC) has filed a reference against the judge before the Supreme Judicial Council.

At this, the chief justice remarked, “Those talking about my judges will have to face me. If it is an issue of tax, ask the official concerned to trace it. How should we try a judge over the tax issue?”

There is another interesting thing in all this. The majority of the Supreme Court judges quashed the reference against Justice Isa, following which the PTI-led government instituted a curative review reference against the decision.

There is no precedent of the curative review reference in Pakistan’s judicial history. However, Prime Minister Shehbaz Sharif ordered the withdrawal of the curative review reference.

On April 10, CJP Bandial heard the government’s plea regarding the withdrawal of the reference in his chamber and reserved his verdict on it — which is yet to be announced despite the lapse of a month.

However, at the same time, the chief justice defended Justice. 

“Filing of a reference against a judge doesn’t prevent him from discharging his duty,” he said. 

However, Justice Isa was stopped from performing his duties from the filing of the reference until the decision on it.

Today, as judges who refused to become part of the conspiracy against Justice Isa are being sidelined, Khan — whose government instituted the reference and ran a media campaign against Justice Isa — has declared that he was asked to do this all by the establishment.

It must be asked: At whose behest did the chief justices from 2019 sideline Justice Isa and why was he not made part of the benches hearing important cases?

Khan’s disclosure is raising questions about the reputation of all these chief justices.

We tried to contact former chief justices Asif Saeed Khosa and Gulzar Ahmed, but they refused to comment.