On September 17th 2023 Justice Qazi Faez Isa was sworn in as the 29th Chief Justice of Pakistan. Ironicallythe oath of office was administered by Dr. Arif Alvi who had himself moved a reference on the advice of Imran Khan to have him removed from his post as a judge of the Supreme Court in 2019. The ceremony was unique in itself because Justice Faez had asked his wife Sarina Isa to stand by his side during the oath taking, something never seen before in our judicial history.
Justice Qazi Faez Isa took on the mantle of Chief Justice hopefully to usher in a period of judicial wisdom, prudence, rule of law and justice. We should not forget some of the giants of our superior judiciary such as Justice A.R. Cornelius, Justice Rustam Kiani, Justice Dorab Patel and Justice Bhagwan Das who demonstrated very high standards of judicial conduct, integrity and honesty and one can only hope that the new CJP will honour the names of his illustrious predecessors.
The first daunting challenge facing the new CJP is to end the divisions in the Supreme Court and unify the learned judges. Disunity and severe disagreements had marred the proceedings of the court during the Bandial days. Today the entire nation is in the grip of a severe controversy and uncertainty regarding the forthcoming national elections.
The nation rightfully expects the CJP to end this controversy by providing a clear and definitive election date in accordance with the law and the constitution. After independence the superior judiciary failed to protect the constitution or the democratic institutions when it was complicit in allowing the non-democratic forces to derail democracy and even to amend the constitution to suit their will. Hopefully Justice Isa will not allow such forces to regain power or to derail the democratic process of the country.
On his very first day in Office Justice Isa made history by allowing the live telecast of the proceedings of the full court reference of the Practice and Procedure Act 2023 this was again something unprecedented in history and it is hoped that Justice Isa will continue to show wisdom and strength in greater public interest. This live telecast was a fascinating spectacle for the public and this event could very well give a new shape to the Supreme Court of Pakistan. The very presence of TV cameras in the court and the feeling that they are under the microscope of the nation makes the judges open to public scrutiny and are subject to accountability in the court of the nation. Another daunting task and challenge facing the new CJP is to restore the faith of the public in the apex court. During the last few years and due to the judicial activism of the apex judiciary the confidence of the people has been badly eroded and the superior judiciary no longer commands the respect that they did in the past. During the past few years the judiciary became unnecessarily embroiled in political matters and the power struggle of politicians and this attitude made the Supreme Court controversial and partisan. The Supreme Court became split in the middle and people openly named judges supporting this political party or that party.
Justice Umar Ata Bandial had been challenged by some judges because they believed that the former CJP had turned the court into a one man show and some judges had gone to the extent of openly questioning the powers and conduct of the former CJP. The former Chief Justice caused a split in the court by favoring some judges, neglecting others like Justice Faez Isa and creating an atmosphere of mistrust and polarisation. Justice Isa must end this state of affairs and get his house in order so as to restore the sanctity and respect of the Supreme Court.
Justice Isa took the correct step to tackle the Practice and Procedure Act 2023 that blocks the powers of the CJP that was blocked by an eight member bench headed by Justice Bandial was suspended even before it became the law of the land. The pre-emptive strike was described in a resolution in the National Assembly as an “aggressive attempt of the Supreme Court of Pakistan to abrogate the unquestioned constitutional authority of parliament to make legislation…” It heightened institutional tensions.
The composition of the bench that heard the petition also widened the divide within the court itself. As the senior most puisne judge Justice Faez Isa had insisted on a full court hearing on the petition regarding the practice and procedure of the supreme court and very courageously refused to be a part of any bench before the issue was resolved and now his very first act to hold a full court hearing on this important issue is definitely his own about clipping the powers of the CJP in matters of Suo Mota and the formation of various benches.
The new CJP should prove to be an upholder of Human rights, rights of minorities and rights of women and take up the thorny matter of disappeared persons. Chief Justice Isa has previously taken a strong position against civilians being tried by military courts. The controversial amendments to the Army Act have given sweeping powers to the intelligence and law-enforcement agencies to detain anyone without charge. The nation awaits with abated breath hoping and wishing that the new CJP comes up to the nation’s expectation and successfully guards and protects the constitution of Pakistan.
—The writer is Professor of History, based in Islamabad.
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