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Above: The Imran Khan government moved a case against Justice Qazi Faez Isa of the Pakistan SC for concealing his overseas properties/Photo: UNI

The Pakistan army’s misconduct case against an SC judge has got the judiciary on the warpath again. Will it be a repeat of the confrontation between Gen Musharraf and Chief Justice Iftikhar Chaudhry in 2007?

By Asif Ullah Khan

In 2007, former Pakistan military dictator General Pervez Musharraf was hoisted by his own petard when he forced then Chief Justice of Pakistan Iftikhar Muhammad Chaudhry to resign and arrested him for taking up cases like “forced disappearances” that challenged the government. The action triggered one of the biggest lawyers’ movements in the history of Pakistan and ultimately led to Musharraf’s downfall.

Now, more than a decade later, the Pakistan military has repeated the same mistake and its leading lawyers’ association has threatened to go on the warpath if the government’s misconduct case against an upright Supreme Court judge, who was critical of the army, goes to trial. This can set off a serious constitutional crisis and even lead to downfall of the Imran Khan government.

This time, it is Justice Qazi Faez Isa of the Supreme Court who has been critical of the role of the army in protecting and promoting terror outfits and interfering in politics. This did not go down well with the generals at General Head­quarters in Rawalpindi. The issue came to light when, through selective leaks, it was said that the government has decided to file a reference or case against Justice Isa and Sindh High Court judge KK Agha with the Supreme Judicial Council (SJC) for concealing their overseas properties.

Unlike Musharraf, this time, the army tried to show that the accountability process was being carried across the board. First, it announced jail and death terms for army officers who were accused of espionage and leaking sensitive information to foreign spy agencies.

But this well-thought-out plan seems to have backfired because Justice Isa is known for his integrity, honesty and uprightness.

But why did the army pick on Justice Isa? Political observers say that in two cases, he not only questioned the role of the military establishment in “political engineering”, but also asked it to take action against its personnel who had violated the oath of office. Zahid Mukhtar, a senior journalist based in Lahore, told India Legal that the reason why Justice Isa earned the military’s ire was related to observations made in the infamous “Faizabad dharna” by fundamentalist outfit Tehreek-i-Labbaik Pakistan (TLP) in 2017, protesting a change in electoral laws. The dharna was aimed at weakening the then Nawaz Sharif government, but it went out of control and TLP activists not only blocked national highways, but also indulged in rioting and violence. It was clear that the ISI was behind it when many of its officers were seen distributing money to the protesters.

A two-member Supreme Court bench headed by Justices Isa and Mushir Alam took suo motu notice and in its verdict delivered in 2019, passed strictures against the army, especially the ISI. In a strongly-worded judgment, Justice Isa pointed to lapses on the part of the government, media, the Pakistan Electronic Media Regulatory Authority, intelligence agencies, armed forces and the Election Commission of Pakistan. But the most damning observations were made against the army.

One observation of the bench was: “Pursuant to the judgment in Air Marshal Asghar Khan’s case the involvement of ISI and of the members of the armed forces in politics, media and other ‘unlawful activities’ should have stopped. Instead when TLP’s dharna participants received cash handouts from men in uniform, the perception of their involvement gained traction.

“The Director General of the Inter-Services Public Relations (ISPR) has also taken to commenting on political matters. The armed forces, and all agencies manned by the personnel of the armed forces, including ISI, Military Intelligence (MI) and ISPR serve Pakistan, and thus all its citizens.

“They must never be perceived to support a particular political party, faction or politician. If any personnel of the armed forces indulges in any form of politicking or tries to manipulate the media he undermines the integrity and professionalism of the armed forces.”

The verdict concluded by saying that the government of Pakistan through the defence ministry and respective chiefs of the army, navy and air force is directed to initiate action against the personnel under their command who are found to have violated their oath.

This left no choice for the army, and through Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) government, a review petition was filed in April 2017 which said that the judgment “suffers from defects” and “needs to be reviewed to avoid injustice”. Mukhtar says that as per law, the review petition will be heard by the same bench and if rejected, it can create a serious constitutional crisis. This is the reason why a reference or case has been filed against Justice Isa so that he cannot hear the review petition.

But the tide seems to have turned in Justice Isa’s favour because of the flimsy grounds on which the reference has been filed. First of all, the overseas properties mentioned in the reference belong to his wife and children. Mohammed Rizwan, a senior Pakistani journalist and a Fellow at the Pragmora Institute, Canada, told India Legal: “Justice Isa had been filing income tax returns for years—first as a lawyer and then as a judge. Why was this issue not brought up earlier? Why now? This clearly shows that the army is out to get Justice Isa. But the debris of this ill-conceived move will fall on Imran Khan.”

Although the reference has been filed by President Arif Alvi, meaning the PTI government, Imran has been silent on this issue, he said. The move has created a serious rift in the party, he said, and many PTI members have written against it to Imran.

Both Rizwan and Mukhtar are of the view that the move may backfire. Already, Additional Attorney General Zahid Ebrahim has resigned on May 29. “Unless resisted, it will cause irreparable damage to the institution [of the judiciary], which is the protector of our fundamental rights and the bedrock of our fledgling democracy,” he wrote in his resignation letter.

Although the Pakistan Electronic Media Regulatory Authority has issued a complete ban on electronic media on discussing the contents of the reference, social media has said two letters were written by Justice Isa to Pakistan’s president. In the first, written on May 29, he urged the president to clarify the reference against him and added that “selective leaks amount to character assassination, jeopardise his right to due process and fair trial, and undermines the institution of the judiciary”.

On June 3, he wrote another letter in which he clarified that three properties in Britain belonged to his children and spouse, who are not his dependants. Justice Isa also said that he had been maliciously maligned by half-truths by the members of the government, which was completely distressing for him and his family.

The reference against Justice Isa has all the portents of turning it into another confrontation between the government and the judiciary, quite like the Iftikhar Chaudhry episode when the entire legal fraternity came out in his support. The Pakistan Supreme Court Bar Association on June 3 upped the ante when it threatened to lock down courts. “Instead of traditional protest marches on Constitution Avenue, this time we will not boycott court proceedings, rather protest inside the court premises by locking down the courts,” warned its president, Amanullah Kanrani. He had earlier demanded impeachment of President Alvi for instituting the reference allegedly with mala fide intention against Justice Isa who “commands highest respect for his unblemished record”.

“We are not against accountability, but we are against discrimination and actions rooted in deceit….Justice Isa is being punished for sins he never committed,” Kanrani reportedly told journalists. He warned that the lawyers’ community would burn the reference against Justice Isa inside Courtroom No 1 if the SJC commenced proceedings against the Supreme Court judge on June 14. Rizwan said: “This is one of the biggest blunders committed by the Pakistani army at a time when the country is going through serious economic and governance crisis.” Whether it will lead to another lawyers’ movement in Pakistan waits to be seen, but it may jeopardise the survival of the government, Rizwan said.

In Pakistan, the army has often been the de facto head of the government and this time too, it is running the entire show. Imran’s 48-member cabinet has just five ministers from his PTI; the rest are nominated by the army. Things will get tougher for Imran after Eid. The army-controlled electronic media has suddenly become very critical of Imran’s performance and there is even talk of an “in-house” change, he said. “Today, Imran is like a batsman, who looks anxiously at the giant screen after a decision about him is referred to the third um­pire, which in this case is the army.”

Uneasy lies the head that wears the crown.

—The author is a former deputy managing editor of The Brunei Times

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