Situationer: What will top CJP Isa’s to-do list?

KARACHI: As Justice Qazi Faez Isa takes oath today as the 29th chief justice of the Supreme Court of Pakistan, he brings with him decades of legal jurisprudence but also faces the challenge of putting back together what is being seen as a fractured superior judiciary.

Justice Qazi Faez Isa is the son of the late Qazi Mohammad Isa of Pishin, a prominent member of the Pakistan Movement. With a career in law going back 45 years, Justice Isa worked as a lawyer for 27 of these years and was a senior partner at a leading law firm in Pakistan. He was appointed chief justice of the Balochistan High Court on August 5, 2009. Then in September 2014, he was elevated to the Supreme Court.

According to the profile shared on the website of the Supreme Court, “Justice Isa’s judgments reflect a strong desire to adhere to the constitution and rule of law, and to safeguard public interest.” The website also says that he had previously “rendered his services as amicus curiae when called upon by the high courts and Supreme Court of Pakistan and had also conducted international arbitrations.”

As a senior judge, some of Justice Isa’s notable judgments include the 2016 Quetta massacre inquiry commission, the Faizabad Dharna case verdict in 2019, and his dissenting note in 2015 regarding the 21st Amendment to the constitution which had enabled the trial of civilians by military courts.The new chief justice comes in after a year of open polarization within the superior judiciary. As such, legal experts say that Chief Justice Qazi Faez Isa’s list of things to do may be dictated by the real or perceived factionalization in the court.

Speaking to host Shahzad Iqbal on the Geo News programme, ‘Naya Pakistan’, on Saturday night, former advocate general of Punjab Ahmad Owais said that going by Justice Qazi Faez Isa’s previous principled stances, “he comes across as a judge who sees the importance of the constitution. This is a positive sign. If he keeps the constitution as the basic principle or foundation, then there can also be political stability in the country. The period of controversy and grouping in the Supreme Court will not continue under Chief Justice Isa and he will go forward taking all the judges together. What is needed most at this moment is for the constitution to be followed completely.”

Lawyer Abdul Moiz Jaferii told Shahzad Iqbal on the same show that the “year and a half of Justice Isa’s agenda is there in the dissenting notes he has written. If he doesn’t adhere to the principles he has written, then criticism will naturally start. I don’t think he will let it get to that; he is righteous in these matters and has always been constitutionally proper.

He has already said benches should be formed based on seniority, cases of importance should have a full court hearing, and matters of public importance should be televised. He has promised openness, and criticized judges’ exclusion. I don’t think Justice Isa would want any wriggle room in these issues but even if he did there is no wriggle room because his own position is on the record”. Jaferii added that if one [a judge] is “honest enough”, there can be no [outside] pressure. “If your own issues have no basic compromise then that kind of pressure doesn’t come on you. And if your other judges in the court are with you, you can sustain the pressure. At least fight the good fight.”

Talking to The News about the challenges the new chief justice could face, PILDAT President Ahmed Bilal Mehboob says that the most immediate task for the new chief justice will be “to address the question of the date of the general election and whether the requirement to hold an election within 90 days can be relaxed due to delimitation of constituencies.”He adds that “the SC lost quite a bit of public trust as a non-partisan ultimate forum to seek justice from. The new CJP’s topmost priority should be to repair the damage done in the past and restore public confidence. The SC was never so divided as it is today. Justice Isa will need to bring the judges together and address some of the outstanding issues such as who constitutes the benches and who is authorized to invoke the SC’s original jurisdiction under Article 184(3).”For Supreme Court advocate Basil Nabi Malik, “arguably Chief Justice Isa’s most formidable challenge will be to tackle the Justice Isa of his past -- [that is] he will be held to the promises and virtues that Justice Isa had extolled for the office of the CJP, as well as for constitutionalism and democracy, when he was not CJ.” Malik feels that everyone will be looking towards the new chief justice “to not only talk the talk but also walk the walk” and “if he does so, we are in for a rejuvenation of the judiciary and its credibility. And if not, we are headed deeper into the abyss.” These challenges, says Malik, come at a time when the “judiciary is faced with a variety of issues, whether it be the clearing of backlog, administrative issues in managing caseloads, fostering unity amongst the judges, or restoring credibility.”

Chief Justice Qazi Faez Isa “will have to deal with the bitter divisions in the apex court”, says analyst Aasiya Riaz who thinks that the chief justice “will be tested on how he manages to lead by taking the SC together on the whole. The CJP’s key job is not just being first among the equals but on managing the entire apex court.”. According to Riaz, this was “one of the worst failures of his predecessor.”

Barrister Ali Tahir outlines five main challenges before CJ Qazi Faez Isa. The first, he says, are the “the military court trials”. Whether these trials are “allowed to proceed or set aside by the Supreme Court led by Chief Justice Isa is the foremost challenge for the new CJP”, says Tahir. The second task before the new chief justice will be how he “deals with the Supreme Court Practice and Procedure Bill -- considering that he has expressed himself against the stay order and the fact that it will affect his powers as the CJP, if upheld”.

Tahir adds that “whether the new CJP is able to unite the court through fair representation in benches is in my opinion the third most important challenge for him”. According to Barrister Tahir, another important challenge for the new CJP is to “ensure implementation of court orders” at a time of “excessive coercive power by the state”. And, lastly, Tahir explains that Chief Justice Isa “inherits a Supreme Court with a pendency nearly touching the 55,000 mark. It is very improbable that at the end of his tenure he can bring the pendency down to half of what he inherited, but that can be a lofty ideal target, and is also one of the most important challenges for his office.”