The Supreme Court’s senior puisne judge, Justice Qazi Faez Isa, has said that one should condemn by name generals who violated the Constitution and judges who gave wrong decisions instead of condemning the institutions.
At the fourth Asma Jahangir Conference that kicked off on Saturday, Justice Isa, the chief guest in the inaugural session, talked about how the judiciary, the army, and the executive of the country failed to uphold the sanctity of the Constitution in the past and asked the people to monitor the Constitution themselves.
Justice Isa is uniquely placed to speak on the crisis of constitutionalism. He has been a voice for the rule of law, for the independence of the judiciary, as moderator Saroop Ijaz put it.
A good number of dignitaries from other countries also spoke.
Justice Isa talked about when and how the Constitution of Pakistan was violated and its repercussions on the country and the people. Here is how he recalled the country’s history with a reminder to the people to prevent all this from being repeated in the future.
The first derailment took place when Khawaja Nazimuddin was kicked out of office by Ghulam Muhammad, a bureaucrat, in April 1953. So, the first attack on the Constitution, democracy, was by a bureaucrat. It was challenged successfully by Maulvi Tamizuddin and the bench was headed by Justice Constantine. The other members were Justice Villani, Justice Muhammad Bakhsh, and Justice Muhammad Bachal. However, the forces of darkness prevailed and the order of the high court was set aside by a bench of the federal court that endorsed the attack. In this four-member bench, the only voice of dissent was Justice Cornelius.
The 1956 Constitution didn’t last very long. Within two years the executive again attacked the Constitution that was Gen Iskandar Mirza and Gen Ayub Khan. This resulted in the Doso case presided over by Justice Munir who endorsed the rule of Gen Ayub Khan. Justice Munir could not find anything in the Constitution or the great history of Islam to support his decision. He went to Austria and found support for his decision in Prof Hans Kelsen’s ‘Pure theory of law’ which gave the theory of keeping military rule. This professor’s theory was a menace to Pakistan.
“What we then had was the uninterrupted and brutal rule of Gen Ayub Khan,” said Isa. “Jinnah inspired Muslims to migrate to Pakistan, the land of the good, the pure. The ethos of Pakistan was Islamic, its foundation was democratic, and its structure was constitutional. When they were taken away, we lost East Pakistan. “Then we got the Constitution of Pakistan in 1973 which was shaped by 200 directly elected, representatives of the people who unanimously approved it. One hundred ninety-six voted for it while there were four abstentions, not a single dissent. The architect of this Constitution was Zulfiqar Ali Bhutto.
“Then there was the third attack on democracy and the Constitution on July 5, 1977, Z. A. Bhutto was arrested and sent packing. Two important cases came before the Supreme Court of Pakistan. Bhutto was tried by a civilian court. All criminal trials in Pakistan take place in a session’s court. This trial took place in the high court. The accused lost one right of appeal.
“The case then went to the Supreme Court of Pakistan presided over by Justice Anwarul Haq. It was a seven-member bench. Four upheld the conviction while three set aside the conviction. They were Justice Muhammad Haleem from Sindh, Justice Dorab Patel from Balochistan, and Justice Safdar Shah from KPK. So, with a razor-thin majority, a man was hung. Unprecedented! You do not pass a sentence of death like that—a bad precedent.
“Bhutto’s death sentence was 950 paragraphs of criminal justice. Never has such a long judgment been written in a criminal case. Such judgments are written by troubled conscience. “Another important case was by Nusrat Bhutto who challenged Martial Law. Then too Justice Anwarul Haq heard the case and dismissed the petition as not maintainable. The Constitution had been thrown aside and the petition was found not maintainable.
“Pakistan has a very tumultuous history as far as politics is concerned. The first prime minister, Liaquat Ali Khan, was assassinated, the second prime minister, Khawaja Nazimuddin, from East Pakistan was dismissed, and Zulfiqar Ali Bhutto was hanged on the orders of the Supreme Court. “The fourth significant deviation from the Constitution was by Gen Pervez Musharraf. In the case of Zafar Hadi Shah, the chief justice was Irshad Hassan Khan. The bench included Chaudhry Iftikhar and Rana Baghwan Das and once again the Constitution was violated and the power to amend it was given to those who did not have this power by those who could not bestow this power on someone who could not exercise it. Whether one laughs or cries, I don’t know. We are paid servants of the state, paid servants of the people. The Constitution was amended. Then what happened afterward, former prime minister Benazir Bhutto was assassinated.
“Condemn a judge by name, not by the judiciary. Condemn a general by name. Do not condemn the army. Condemn a bureaucrat by name, not bureaucracy. Pakistan needs institutions. Pakistan needs a judiciary, military, and bureaucracy. We are paid by the people of Pakistan. Do hold us accountable individually. Without institutions a country implodes. Pakistan needs democracy. You remove democracy from Pakistan and you are an enemy of Pakistan. Please be very careful,” he went on to say.
“In recent times, another prime minister was removed for receiving notional income which he never received. It was preceded by what was called JIT. The fifth violation of the Constitution was the joint investigation team (JIT), found in only Anti-Terrorism Act.
“In Pakistan, we have a parallel vocabulary now. We assume some institutions are actually not institutions. The armed forces are not an institution rather they are part of the executive. The executive part is two; the civilian part and the military part. Legislature is an institution. Judiciary is an institution.
“We are out of the grey list of FATF which is encouraging. I give citizens an acronym CMDC which is citizen monitor of democracy and constitutionalism, to monitor the Constitution. Make your list of individuals in institutions. On my blacklist are Justice Muhammad Munir, Justice Anwarul Haq, and Irshad Hassan Khan. I have a white list as well. Monitor those whose salaries and pensions you are paying. In my blacklist of executives, I would put Gen Ayub, Gen Zia, and Gen Pervez Musharraf. I put on the white list the first commander-in-chief of Pakistan Gen Messervy, the second commander-in-chief Gen Gracey, Gen Asif Nawaz, Justice Constantine, Cornelius, and Muhammad Bux.”
He quoted from the book ‘Crossed swords’ and said here is how the politics of the plot began. “The politics of the plot is very interesting in Pakistan. There is Article 19A of the Constitution that gives the right to access information in all matters of public importance. I learned the Supreme Court filed a writ petition in the high court. Imagine the Supreme Court as a litigant in the high court.
“I wrote a letter to the chief justice of Pakistan dated 16 December 2021, Pakistan Information Commission had asked for some information about SC employees and the registrar challenged it. I never received an answer to my letter. I am ridiculed for writing letters. How else should I defend the Constitution of Pakistan?”
He talked about being offered a plot in some sector of Islamabad at a nominal price. “I couldn’t find anything anywhere in the law if a judge was entitled to it. I wrote a letter to the CJ if he could provide me with the law according to which I can accept this offer. The answer I got the next day was ‘laws are available in the law books’.”
“I wrote in turn ‘Like the unicorn I cannot find this law and those holding office under the Constitution cannot hold confidentiality when they receive something on account of the office they hold’.”
Another circular came from the Ministry of Interior that you are entitled to give gifts of prohibited weapons. Qazi Faez Isa said he again wrote a letter on Sept 14, 2019, questioning this. Nine persons were entitled to this. No answer to this one either.
Asma Jilani won a case against the Punjab government 50 years back and became famous.
“I remained chief justice of the high court for five years. If anybody tells you they are under pressure, they are not true to their oath of office. If you can’t handle the heat in the kitchen, get out. If you are pressured and sell the country, history will remember you. I was in tears when chief justice of Pakistan said there was pressure on him on public television to give this judgment in the Zulfikar Ali Bhutto case. Do you take away a person’s life because of pressure? If he couldn’t handle it, a resignation letter would have sufficed. Let us learn from our history. Learn from the examples of Imam Maalik and Imam Abu Hanifa.”