A tale of two judges

ON Monday, a new chief justice presided over the Supreme Court, as people watched with hope and trepidation. The mood was not as celebratory and optimistic as it was a year ago when Qazi Faez Isa had taken over the Supreme Court as chief justice.
However, back then, in the age of innocence, many were naïve enough to assume that Isa would prove to be a stronger judge who would carry the court with him unlike his predecessor who was seen as weak. The latter’s weakness was said to have divided the apex court. And in that hope, Isa’s beginning was everything that Umar Ata Bandial’s ending was not.
But a year later, it seems those hopes were misplaced, for Isa has left behind a far weaker and more divided court than he inherited. And while he cannot be blamed for being weak, he wasn’t immune to a tragic flaw. But more than the flaws of chief justices, it is the larger context which has ended up shaping the Supreme Court in the recent past, as it will in the coming days.

Isa, like many of the judges who came before him, was a product of the times, as was for example, his benefactor, Iftikhar Chaudhry, or Saqib Nisar who went from being known as a textbook jurist to an idiosyncratic ‘baba’ who took to surprise visits to lower courts and hospitals and becoming a dam builder.
Iftikhar Chaudhry confronted the very dictator under whom he became chief justice, took on the mantle of an anti-establishment figure, and brought down Musharraf, before becoming the PPP’s nightmare.
And in many ways, that is also the story of Qazi Faez Isa, who entered the judicial world after the lawyers’ movement — when he was appointed to the Balochistan High Court. He came to prominence when he became part of the controversial ‘Memogate’ commission, which was perceived back then as a proxy of the establishment. It was only with the Faizabad dharna case and its aftermath that he acquired his ‘anti-establishment’ avatar, which lasted all the way till his elevation at the Supreme Court.
Take stock of the larger arc and it seems both of them were characters who recognised a tide and tried to ride it to fortune, even if it meant ‘confronting’ and then ‘collaborating’ with the establishment in quick succession.
As chief justice, Isa’s decisions in PTI-related cases — be it the infamous symbol decision, the reserved seats or the individual cases of recounts — could easily be compared to the decisions Chaudhry had given over a decade ago in cases involving the then PPP government.

That both judges were driven by the treatment meted out to them by these parties was apparent (the PPP had refused to restore Chaudhry to his position after the 2008 election while the PTI had filed the reference against Isa when in power). But more than their reactionary ‘judgery’, their overall role was shaped by environs larger than their own choices.
Chaudhry had been restored after the seminal lawyers’ movement, which was seen to be rooted in people’s power rather than the judiciary’s constitutional role or authority. And for this reason, he was able to not just reign over a united judiciary but also play fast and loose with public interest litigation. Isa took over a far more divided judiciary, when the fervour and the sheen of the lawyers’ movement had been lost; but more importantly, the role of the establishment was far more unsubtle.
Whereas Chaudhry had been the public face of the opposition to the PPP, he had more than just the tacit support of the establishment, which wanted to keep a low profile. But by the time Isa was in place, the establishment didn’t need more than a ‘junior partner’.
So while Chaudhry had the space to call public officials to account — to public applause — and take notice of sensitive issues such as enforced disappearances, the court in 2024 could take no such liberties. The chief justice could do little but pretend there were no human rights violations, no disappearances, no hapless people needing help.
Would he have lasted in his job had he tried to help the IHC Six? Was it his ambition that kept him from standing behind them or did he simply know too well the parameters of his position? (This is perhaps a good time to mention the famous moment before his elevation when his interview with an unknown university was carried live by all television channels.) It is too soon to know the answers.

Again, within the larger context, Chaudhry faced a weak government, for the PPP was in power after having lost its charismatic leader. Isa faced a party which enjoyed unprecedented support in addition to an internecine war among the elite. And in these extraordinary circumstances, it wasn’t enough for judges to simply disqualify prime ministers or other individuals to keep up their end of the bargain; the people had to be disenfranchised. Hence, the bat symbol decision and hence the minority judgment in the reserved seats case.
But in the end, neither Chaudhry nor Isa had many supporters left. By the time the PML-N came to power, it feared the Chaudhry court being used against it and was happy to bid him farewell; even the lawyers’ community was divided with sections having become critical of his activism. And similarly, Isa had become too controversial to be retained and those who had once stood by him emerged as his biggest critics.
Perhaps one can also say that like Chaudhry, Isa too leaves with no major legacy in terms of a judgment. And as much as Chaudhry was and continues to be defined only in terms of his confrontation with Musharraf, Isa will continue to be defined only in terms of his hostility to the PTI.
The writer is a journalist.
Published in Dawn, October 29th, 2024