The government (and military) may have miscalculated in their attempt to take down a popular judge.
It’s deja vu all over again. At a time when Pakistan is going through a serious economic crisis, the all-powerful military establishment has done something that could create further political instability and even derail the Imran Khan government. After targeting politicians in the name of anti-corruption or accountability through Khan, the military establishment has turned its attention to judges who are not in the good books of GHQ.
The Imran Khan government has moved reference or a case against Justice Qazi Faez Isa of the Supreme Court and Sindh High Court judge KK Agha to the Supreme Judicial Council, claiming that they have not declared their overseas properties in their tax returns. Interestingly, a reference can be filed by a private person but in this case it was filed by Pakistani President Arif Alvi, to show that the Khan government is carrying out its anti-corruption drive across the board. To make this impression more authentic, the army for the first time publicly sentenced a retired brigadier to death and a retired general to life imprisonment.
On the face of it, it looks a well-thought out plan — but it went wrong because the army has picked the wrong judge to target. The case is reminiscent of when Pakistani President General Pervez Musharaff sacked and then arrested the then-chief justice of Pakistan Iftikhar Muhammad Chaudhry, which galvanized into a lawyers’ movement, one of the biggest civil protests in the history of Pakistan, and ultimately led to the downfall of Musharaff. The Justice Isa case too has similar portents. Incidentally, both Chaudhry and Isa hail from insurgency-ridden Balochistan province and delivered verdicts that have not sat well with the army.
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Many believe that the real reason for filing reference against Isa is that in two cases he has not only pulled up the military establishment but has also asked it to remain within its constitutional confines.
The first case involved the Quetta blast in August 2016, in which many prominent lawyers killed. Isa, who headed one commission to investigate the blast, in his report passed severe strictures against the Interior Ministry and Inter-Services Intelligence (ISI) for not taking action against terror outfits openly operating in Pakistan. But his more damning verdict was on the infamous “Faizabad dharna,” a sit-in protest led by an army-backed militant and fundamentalist outfit called Tehreek-i-Labbaik Pakistan (TLP). In 2017, the TLP, protesting a change in electoral laws, blocked the national highways and indulged in rioting and street violence, holding Pakistani cities to ransom for days. The dharna was choreographed by the ISI to weaken the then-Nawaz Sharif government; many ISI officers were seen distributing money to protesters.
A two-member Supreme Court bench headed by Justice Isa and Mushir Alam took suo motu notice and in its verdict, delivered in 2019, seriously indicted the role of the army, especially the ISI. One of the observations made in the verdict said:
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 Ministry of Defense and the respective chiefs of the army, the navy, and the air force are directed to initiate action against the personnel under their command who are found to have violated their oath.
This clearly raised eyebrows at GHQ in Rawalpindi, as for the first time in the history of Pakistan such language was used against the armed forces, especially the ISI.
Zahid Mukhtar, a senior journalist based in Lahore, told India Legal that the language used in the verdict has put the armed forces in a serious bind and they were forced to file a review petition against it.
“But as per law the review petition will be heard by the same bench,” he explained, “and if it rejects the review petition, then it can create a serious constitutional crisis.”
Mukhtar said most legal experts are of the view that the army wants to get Isa out of its way before the review petition comes up for a hearing and thus intelligently moved a reference against him through the Khan government.
Although the move looked well-choreographed, it did not go as per the script because selective leaks about the reference by the army snowballed into major controversy. Isa himself wrote to President Alvi asking him to clarify the reference against him. Isa added that “selective leaks amount to character assassination, jeopardize his right to due process and fair trial, and undermine the institution of the judiciary.”
Mohammed Rizwan, a senior Pakistani journalist and a fellow at the Pragmora Institute, Canada, believes that “This is one of the biggest blunders committed by the Pakistani Army at a time when the country is going through a serious economic and governance crisis.”
“The economy is in a shambles,” Rizwan explained. “The public is reeling under a day-to-day survival struggle because of a sharp hike in prices of essential commodities; the IMF bailout program will further aggravate these miseries. In such times, Pakistan hardly needs another crisis.”
Rizwan said although contents of the reference have not been made public, it is believed that they are about Isa’s wife’s properties in Spain, which the government says have not been declared in tax returns. Isa’s wife holds dual Spanish and Pakistani citizenship.
“The question that arises is why now? Justice Isa as a lawyer and then as a judge had been filing his tax returns for years. If there was any discrepancy he should have been questioned earlier. Why now? This really smacks of vendetta,” Rizwan said, adding the army has earlier tried a campaign against him when a few members of the Punjab Bar Council passed a resolution against him for mocking the Pakistan Army. But that resolution was rejected by various state bar councils, including Punjab’s, which said these members do not represent entire bar council.
Mukhtar says targeting Isa can be counter-productive as he is known in Pakistan for his honesty and integrity. In addition, Isa’s father was a close associate of Pakistan’s founder, Mohammad Ali Jinnah.
The first signs of discontent emerged when Additional Attorney General Zahid F Ebrahim, son of renowned lawyer and former Supreme Court judge Fakhruddin G Ebrahim, resigned, calling the reference “ a reckless attempt to tar the reputation of independent individuals and … browbeating the judiciary of Pakistan.”
The Pakistan Muslin League (Nawaz), Pakistan Peoples’ Party, and various bar associations have already come out in the support of Isa and threatened to launch a movement against the government. The Supreme Court Bar Association (SCBA) has even demanded President Arif Alvi’s impeachment for filing the reference against Isa. SCBA President Amanullah Kanrani said that the complaint filed against Justice Isa was “condemnable.” Recounting Justice Isa’s services to the nation, the SCBA president said that the SC judge had “exposed” terrorism and added that “people who do not speak against terrorists are facilitators of terrorism.”
Lawyers’ representative bodies across the country planned meetings for after Eid to devise a future strategy. They see the move as an effort to undermine the independence of the judiciary.
The opposition-dominated Senate last week adopted a resolution demanding the withdrawal of the references filed against the two judges.
Rizwan says the biggest fallout of this disastrous move will be on Prime Minister Imran Khan. “The military, which was earlier pulling the strings from the behind, has now come out in the front,” he explained. “This is the reason why Imran is completely silent on this issue.”
The military, unhappy with Khan’s performance, has imposed its men on him in the shape of “advisers,” which has created a serious rift in the party. As of now, out of 48 ministers and advisers, only five belong to Imran’s Pakistan Tehreek-e-Insaf (PTI), Rizwan said.
Mukhtar says the accountability or anti-corruption drive has also brought Nawaz Sharif and Asif Ali Zardari together and they are not allowing parliament to function. Khan’s coalition government has a wafer-thin majority in the national assembly and two of his major allies — MQM and Balochistan National Party (Akhtar Mengal group) — are so unhappy with the government that they are threatening to quit the coalition.
“Will Justice Isa’s reference culminate into another lawyers’ movement, which we saw in the case of Iftikhar Muhammad Chaudhry? Only time will tell but the course of Pakistan politics may drastically change after Eid. The next two months will very crucial for Imran’s survival, which solely depends on the third umpire [the military],” Rizwan said.