Who is Justice Qazi Faez Esa?

Born in Quetta on October 26, 1959, Justice Qazi Faez Isa is the son of the late Qazi Mohammad Isa of Pishin, who was in the forefront of the Pakistan Movement and a close associate of Quaid-i-Azam Muhammad Ali Jinnah.

Justice Isa’s father was the first person from the province to acquire the Bar-at-Law degree and helped establish the All India Muslim League in Balochistan after his return from London. His father had served as the only member on the Central Working Committee of the All India Muslim League from Balochistan.

Begum Saida Isa, Justice Isa’s mother, was a social worker and worked in an honorary capacity on the boards of hospitals and other charitable organisations which focused on education, children and women’s health issues.

After completing his primary and secondary education in Quetta, Isa moved to Karachi to finish his ‘O’ and ‘A’ levels from the Karachi Grammar School (KGS). He then went on to study law from London, where he completed his Bar Professional Examination from the Inns of Court School Law, London.

Justice Isa enrolled as an Advocate of the Balochistan High Court on January 30, 1985, and as an Advocate Supreme Court in March 1998.

He has practised law for over 27 years before the High Courts of Pakistan, the Federal Shariat Court and the Supreme Court of Pakistan. He became a member of the Balochistan High Court Bar Association, Sindh High Court Bar Association and Life Member of the Supreme Court Bar Association of Pakistan.

From time to time, he was called upon by the High Courts and the Supreme Court as amicus curiae and rendered assistance in certain complicated cases. He has also conducted international arbitration.

Justice Isa took oath as a judge of the Supreme Court of Pakistan on September 5, 2014, and is scheduled to become the chief justice on September 18, 2023, for 13 months.

He lives in Islamabad with his wife and has two children and a granddaughter.

Landmark decisions
Known to weigh every word in his judgments twice, Justice Qazi Faez Isa has played an instrumental role in Pakistan’s judicial landscape. What follows is a list of his most significant judgments.

In 2012, a judicial commission headed by Justice Qazi Faez Isa was tasked with probing the Memogate scandal, a case that came to light when a memo, delivered to a high-ranking American official allegedly at then ambassador to the US Hussain Haqqani’s behest in May 2011, had exposed serious rifts between the PPP government and the army after a US-based businessman Mansoor Ijaz brought it to light.

The case, first taken to the apex court in 2011 by the then opposition leader Nawaz Sharif, had forced Haqqani’s resignation.

The judicial commission had submitted its report to the apex court, holding Haqqani guilty of authoring the controversial memorandum and adding that the former US envoy “was not loyal to the country”.

After dragging on for years, the Supreme Court finally wrapped the case up in February 2019 by stating that it is the responsibility of the state to arrest and try former Pakistani ambassador to the United States Hussain Haqqani if it so wishes.

On October 6, 2016 a commission was formed by the Supreme Court to investigate the Aug 8 suicide attack on Quetta’s Civil Hospital in which at least 74 people, mostly lawyers, had lost their lives.

An inquiry commission, led by Justice Faez Isa, issued its detailed 110-page report on the incident after 56 days, making 18 recommendations.

After thoroughly examining the concerned persons and obtaining responses from relevant ministries, departments and institutions, the commission’s report called for banning terrorist organisations without any delay by enforcing the Anti-Terrorism Act (ATA) in letter and spirit.

It regretted that the then interior minister, Chaudhry Nisar Ali Khan, had met Maulana Mohammad Ahmed Ludhianvi, the head of three banned organisations — Sipah-i-Sahaba Pakistan, Millat-i-Islamia and Ahle Sunnat Wal Jamaat — to listen to his demands and conceded to them as per media reports. It also asked the state, which it said had receded in the face of those spreading hatred and murder, to re-exert itself.

Justice Isa stated in his concluding remarks: “This country was created by those who wanted to ameliorate the condition of the Muslims of the subcontinent and to uphold the freedoms of those of every faith. The message of Unity, Faith, and Discipline was unfortunately sabotaged by hypocrites and extremists and needs to be rejected. The original motto needs to be reclaimed, and in doing so, we will come closer in ensuring that fundamental freedoms are safeguarded.”

Additionally, Justice Isa penned a heartfelt letter written to the families of the deceased lawyers in the Quetta massacre.

A note authored by Justice Qazi Faez Isa showed the senior judge taking exception to him being excluded from a bench hearing a human rights case.

The note referred to a incident when a three-member bench of the Supreme Court, headed by the then Chief Justice of Pakistan, Mian Saqib Nisar, was hearing a case pertaining to hospital waste disposal.

Justice Isa noted that he had called the Khyber Pakhtunkhwa advocate general to read out Article 184 (3) of the Constitution, as he wanted to ascertain whether the said article could be invoked in the case being heard as the relevant material was absent from its file.

He noted that the article allows the apex court to give an order if it “considers that a question of public importance with reference to the enforcement of any of fundamental rights” is involved, adding that the SC needs to satisfy itself that both conditions i.e. the matter being of public importance and involving fundamental rights, are met for it to be able to assume original jurisdiction as stated in Article 184 (3).

Justice Isa continued that the matter was of grave concern to him as “it is unwarranted and unprecedented to reconstitute a bench, in such a manner, whilst hearing a case”.

“To do so undermines the integrity of the system, and may have serious repercussions.”

“I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge,” he concluded.

The Supreme Court wrapped up a suo motu case of the 2017 Faizabad sit-in staged by the Tehreek-i-Labbaik Pak­is­tan (TLP) in February of this year and directed the government, law enforcers, intelligence agencies and the Army’s media wing to operate within their mandate.

On Nov 22, 2018, a two-judge SC bench comprising Justice Qazi Faez Isa and Justice Musheer Alam had reserved its judgement and closed the hearing of the case that was initiated on a suo motu on Nov 21, 2017 ─ after dishing out severe criticism to the attorney general, media regulator and other stakeholders.

In its conclusions to the judgement, the court directed the federal and provincial governments to monitor and prosecute those advocating hate, extremism and terrorism, and also ordered─ through the defence ministry and respective chiefs of the armed forces ─ to initiate action against armed forces’ personnel found to have violated their oath.

The judgement also noted that the Director General of the Inter-Services Public Relations (ISPR) has also taken to commenting on political matters and said that the military must never be perceived to support a particular political party, faction or politician.

It said: “The perception that ISI may be involved in or interferes with matters with which an intelligence agency should not be concerned with, including politics, therefore was not put to rest.”

On 3 November 2007, then-President Pervez Musharraf declared a Provisional Constitutional Order (PCO), which declared a state of emergency and suspended the Constitution. Under this emergency law, all judges were asked to take oath under this order and those who didn’t were placed under house arrest. A seven-member bench issued a restraining order on the same day, barring the government from implementing emergency rule and urging other government officials to not help do so. Justice Isa was among the judges who refused to take oath. On 3 November 2007, a restraining order was issued by a seven-member bench of the Supreme Court to bar the government from implementing emergency rule.

Two years later, in July 2009, then-Lahore High Court Chief Justice Khawaja Muhammad Sharif referred to the Supreme Judicial Council of Pakistan a list of names of justices who took oath under the 2007 Provisional Constitutional Order, stating that doing so went against the restraining order issued on 3 November 2007. This referral caused the Supreme Court to first decide it could begin contempt of court charges against many of the higher court justices who took the oath. It also caused President Asif Ali Zardari to issue orders declaring that the 76 judges that had taken the oath would no longer hold office until the decision on 31 July 2009.

Subsequently, after the Supreme Court declared the action of November 3, 2007 unconstitutional, all the then judges of the High Court of Balochistan tendered their resignation. Justice Isa was directly elevated to the position of Chief Justice of the High Court of Balochistan.

In an interview during that time, Justice Isa talked about the legal ramifications of the new Provisional Constitutional Order (PCO).

He said: “The PCO states that the constitution is held in abeyance. The constitution does not provide for it, the constitution does not envisage a provisional constitutional order. It has zero legal or constitutional sanctity.”

“We must understand the special nature of the constitution. The constitution declares that each and every citizen of Pakistan, and every person within Pakistan, even if he is a foreigner, has to abide by the constitution of Pakistan. You cannot hold the constitution in abeyance. It defeats the purpose of a constitution. The constitution is not a simple law, it is the paramount law. Article 6 of the constitution says that anybody who tries to abrogate it by force of arms, or otherwise, or assists in its abrogation, commits high treason.”

Petition filed against Justice Isa’s appointment as SC judge
In March 2018, a petition challenging the appointment of the Supreme Court arbiter Justice Qazi Faez Isa as Chief Justice of Balochistan High Court and later his elevation to the apex court on September 5, 2014, was heard at the floor of country’s highest legal authority.

On January 1, 2016, advocate Riaz Hanif Rahi had filed a petition with the top court under Article 184 (3) stating that both the appointments were made without following the process. Referring to Order XVII Rule 5 of the Supreme Court Rules 1980, the registrar had stated that the petition, prima facie, appeared to be frivolous.

On March 14, 2016, the Supreme Court Registrar, while citing a judgment of the Supreme Court, had raised the objection to the petition stating that the petitioner had not sought enforcement of the fundamental rights guaranteed under Article 184 (3) of the Constitution nor he approached any appropriate forum available to him.

“The petition was filed at a time when Justice Isa’s remarks had pleased Nawaz Sharif,” The News had reported at the time.

The learned judge, while hearing a petition of a local PML-N activist seeking disqualification of MNA Sheikh Rashid Ahmed, had passed the remarks that the Panama Papers case involved four Avenfield flats in London of the Sharif family, but Sharif was disqualified for holding an Iqama (work permit) of the United Arab Emirates.

Nawaz Sharif had termed Justice Isa’s observation “not an ordinary” development.

In December 2017, Justice Qazi Faez Isa was part of the three-member Supreme Court bench that had dismissed the National Accountability Bureau’s request to adjourn proceedings of the Rs 1.2 billion Hudaibiya Paper Mills corruption case till a new prosecutor general was appointed.

Protests against ‘Faizabad sit-in’ judgements
The Punjab Bar Council (PbBC) in April this year demanded the removal of Justice Isa for ‘criticising’ the armed forces as well as premier spy agency Inter-Services Intelligence in a verdict in the Faizabad sit-in case.

“Justice Qazi Faez Isa rendered a judgment in the Faizabad dharna case in February 2019, in which the towering principles of law stand completely mutilated. The Federation of Pakistan is justified in filing an application for review against the judgment, in which without any evidence, factual basis or determination, Justice Qazi Faez Isa has ridiculed the armed forces and has carted serious aspersions on the intelligence agencies implying them to be rogue agencies thus strengthening the narrative of RAW, India, and our enemies,” a resolution passed by the executive committee of the Punjab Bar Council read.

The Pakistan Bar Council, the mother body that regulates the affairs of the legal fraternity, however, had rejected the demand by the PbBC and described its resolution as uncalled for, unnecessary that transgresses the independence of judiciary.

References filed against Justice Isa
In late May in 2019, reports started circulating regarding references being filed against superior court judges — a development which was confirmed when Justice Isa approached President Dr Arif Alvi, and complained that selective leaks to the media amount to his character assassination, thus jeopardising the right to due process and fair trial.

An informed source told Dawn that in his letter to the president, Justice Isa also said he would be obliged if the former could let him know if it was correct that a reference had been filed against him under Article 209 of the Constitution in the Supreme Judicial Council (SJC).

Legal observers believed that the campaign against Justice Isa was launched after he authored a strongly worded judgement on Feb 6 in a case relating to the Nov 2017 Faizabad sit-in by the Tehreek-i-Labbaik Pakis­tan, directing the defence ministry and chiefs of the army, navy and air force to penalise the personnel under their command found to have violated their oath.

The Supreme Judicial Council (SJC) then issued a notice to the federal government through the attorney general regarding references filed against Justice Qazi Faez Isa and Justice Karim Khan Agha of the Sindh High Court.

The references accused the two judges of concealing their assets and recommended action against them under Article 209 of the Constitution.

Soon after, in a letter which legal observers believed was a kind of a response to allegations being levelled against the judge for keeping three properties in London, Justice Isa said that he might have endured the inquisition tactics employed against him and his family. “But does the matter not suggest something more sinister to undermine the independence of the judiciary?” he asked. The letter went on to say that the judge would not permit this to happen and, as per his constitutional oath, would preserve, protect and defend the Constitution.

Regarding the allegation about violating Section 116 (1)(b) of the Income Tax Ordinance 2001, Justice Isa said he had not received any notice from the tax authority.

“Secondly, my children are not minors nor have they been so for quite a while. Thirdly, neither my spouse nor my children are my dependents. Fourthly, Section 116 (1) (b) of the Income Tax Ordinance 2001 is not penal provision,” stated the letter written by Justice Isa.

The judge told the president that he had been maliciously maligned by half-truth by the members of the government, which was completely distressing for his family and himself.

Justice Isa through a set of pleas challenged the presidential reference in the Supreme Court and asked that a full bench be constituted, which was accepted by the then CJP Asif Saeed Khosa.

Through his petition, Justice Isa pleaded before the Supreme Court to consider and declare that the Asset Recovery Unit (ARU) constituted by the government to investigate his family’s properties was illegal and working without any legal effect and any of the actions taken by the unit with regard to the reference against the petitioner judge and his family was thereby illegal and of no legal effect.

Compiled by Shahbano Ali Khan

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