CJP Isa: A polarising legacy?

KARACHI: As Chief Justice of Pakistan Qazi Faez Isa approaches his retirement on October 25, his legacy is poised to come under close scrutiny. Legal analysts and lawyers are already weighing in, with assessments ranging from praise for his judicial reforms to critiques of his controversial decisions.

Speaking to The News, lawyers and constitutional experts offer a mix of analysis: while some view his tenure as marked by significant contributions to transparency and public accountability, others highlight the controversies that have clouded his time in office.

A defining feature of CJP Isa’s tenure has been the introduction (in September 2023, right after he became CJP) of live televised Supreme Court proceedings, a first in Pakistan’s judicial history. This bold move by the chief justice aimed to open up courtrooms to the public, providing unprecedented access to legal proceedings. It was met with a mixed response -- praised as a step toward transparency but criticised for potentially turning the judiciary into a stage for political drama.

Another key reform during his tenure was the Supreme Court (Practice and Procedure) Act, 2023, which sought to regulate the court’s internal operations, particularly concerning suo-motu powers. The Act shifted decision-making on these cases to a three-member bench, instead of leaving the authority solely with the chief justice, thereby decentralising the power structure. While seen by some as a necessary check on judicial overreach, others regarded it as an attempt to curtail the chief justice’s powers. Additionally, the Act grants individuals the right to appeal against decisions made under the court’s suo-motu powers, allowing appeals to be heard by a larger bench within 14 days.

Prior to the passage of this law, the CJP had the exclusive authority to constitute benches and initiate suo-motu actions. There were instances where the use of suo-motu powers by former chief justices raised concerns about potential biases in how and when they were exercised, especially in politically sensitive cases.

There were also concerns about bench formation under former CJs’ tenures. For example, former CJ Umar Ata Bandial had the sole discretion to decide which judges would hear particular cases and how benches would be constituted for both routine and high-profile cases. He was sometimes criticised for forming selective benches for politically sensitive cases, leading to accusations of bench ‘packing’.

CJP Isa’s rulings over the years have demonstrated a commitment to social justice and environmental protection. In Mohammad Aslam Khaki v Khalid Farooq Khan (2023), he emphasised the importance of preserving public parks and green spaces, rejecting the commercialisation of public land for private gain. Similarly, in Federal Government Employees Housing Foundation v Ghulam Mustafa, CJP Isa criticised the state’s preferential treatment of judges and military officers in land allocations, underscoring how such practices perpetuate inequality in a country where millions struggle for basic housing.

Chief Justice Isa’s stance on women’s rights has been another hallmark of his judicial philosophy. In Muhammad Rafiq v Ghulam Zohran Mai, he condemned the practice of depriving women of their rightful inheritance, while in Muhammad Abbas v State, he criticised societal acceptance of ‘honour killings’ and insisted that murder should never be masked under the guise of honour.

One of Chief Justice Qazi Faez Isa’s most controversial rulings was the 2019 decision in the Faizabad Dharna case. While affirming the right to protest, CJP Isa ruled that public spaces should not be obstructed and property should not be damaged. The judgment also implicated intelligence agencies in the protests, leading to significant backlash from powerful political and military quarters. This ultimately resulted in a controversial reference being filed against him, accusing him of failing to disclose foreign assets -- an accusation later quashed by the Supreme Court in 2020, but not without deepening tensions between the judiciary and the executive.

Chief Justice Isa’s tenure as chief justice has not been without controversy. The decision to deny the PTI)the use of its iconic ‘bat’ symbol for the 2024 general election drew sharp criticism from PTI supporters and political commentators. Adding to this is the ongoing political storm surrounding the government’s proposed constitutional amendment package.

Reflecting on Chief Justice Qazi Faez Isa’s legacy, PILDAT President Ahmed Bilal Mehboob observes that CJ Isa has been perceived as “an anti-Imran Khan judge even before he assumed the position of CJP”, a perception that was “strengthened during his term as CJP.” Despite these controversies, Mehboob commends CJP Isa for his resilience in fighting the 2019 reference, stating that he “will be known as a disciplinarian and a fighter”, though he leaves “a divided Supreme Court as divided as when he became the CJP.”

The question on legacy may be answered differently in different moments in history, feels Supreme Court advocate Basil Nabi Malik who says that if he were asked this a year or so ago, “my answer would perhaps have been different”. The Justice Qazi Faez Isa of yesteryear, he says, “was a maverick, but more so than that, a staunch advocate of the rule of law and a fierce champion of the independence of the judiciary.” But as chief justice, Malik suggests, CJP Isa “seems like a different person entirely”, noting that his legacy “will be shrouded in controversy.”

Hassan Abdullah Niazi, a high court advocate, echoes this sentiment, linking CJP Isa’s legacy to his decision to strip the PTI of its electoral symbol. “His tenure will be remembered for adding yet another decision to Pakistan’s long history of political victimisation through our judicial system”, says Niazi, adding that while CJP Isa may have aimed for judicial restraint, his decisions often amounted to “judicial abdication”.

On the issue of the Supreme Court Practice and Procedure Act, Niazi notes that Chief Justice Isa himself has described his legacy as limiting his own powers and introducing live streaming. However, he suggests that even these reforms “are likely to be remembered as a case of one step forward, two steps back”.

Finally, constitutional expert Hafiz Ahsaan Ahmad Khokhar notes that CJP Isa’s legacy “will be viewed as a mixed bag from an administrative and judicial perspective.” Khokhar credits CJP Isa for his early reforms, including the live streaming of Supreme Court proceedings. He also maintains that CJP Isa’s judicial legacy is characterised by a strict interpretation of the law and a cautious exercise of judicial authority.