President Alvi and his men challenged

Solemnly sworn as president is not equal to Oath: Hashmat Habib  

The References against Justice Qazi Faez Isa and High Court judges are filed by a Dentist Doctor Arif Alvi as a stranger because he had not taken the oath as per Article 255 of constitution. He had solemnly sworn as president which is not equal to oath.

Hashmat Habib President Tehreek-e-Tahafuzz-e-Adlia pointed out that framers of the Constitution had intentionally avoided using word Oath which can be taken only on Holy Book. He said on account of reference against Qazi Isa the entire lawyers’ community and opposition parties have reacted seriously to set the things on right path.

The senior lawyer of Supreme Court said; leave the result of movement and the Govt planning aside, the fact is that right from president, prime minister, ministers, judges, elected representatives, holder of constitutional posts and members of armed forces did not take Oath except Solemnly swear. Therefore, all these persons are strangers to the Islamic Republic of Pakistan and entire system of constitutional post holders are working against the constitution.

Hashmat Habib said this glare illegality should be rectified and all should take Oath afresh to save Constitution.

It may be mentioned here that a reference has been filed against Justice Qazi Faez Isa under Article 209 of the Constitution in the Supreme Judicial Council. He is facing possible legal action over alleged misconduct months after delivering a landmark ruling that criticized the role of the country’s powerful military in an anti-government protest in 2017.

In a letter to the president, Supreme Court Justice Qazi Faez Isa has questioned federal authorities over a court reference, or legal complaint, that could potentially lead to his removal from office. The complaint reportedly requests that the Supreme Judicial Council, comprising five of the most senior Supreme Court and High Court judges, to try several senior judges for alleged undeclared foreign assets.

Isa particularly raises the question of why the reference was selectively leaked to the media. “Selective leaks amount to character assassination, jeopardizing my right to due process and fair trial,” he wrote in a May 28 letter addressed to President Arif Alvi. “[It] undermines the institution of the judiciary.”

In a landmark ruling on February 6, Isa- widely considered a trustworthy judge had directed Pakistani government, spy services, and the military’s media office to operate within their legal mandate. The ruling covered a suo motto case regarding a sit-in protest in late 2017. Islamist group Tehreek-e Labaik Pakistan (TLP) had paralyzed the capital, Islamabad, and the neighboring city of Rawalpindi for weeks.

“The constitution emphatically prohibits members of the armed forces from engaging in any kind of political activity, which includes supporting a political party, faction, or individual,” the ruling said. “The government of Pakistan through Defense Ministry and respective chiefs of the army, the navy, and the air force are directed to initiate action against the personnel under their command who were found to have violated their oath.”

Military’s role in the protest raised suspicion at the time. The protest ended with an agreement between the civilian government and TLP leaders. It was brokered by a senior officer of the Inter-Services-Intelligence (ISI), the country’s secret service. “The perception that ISI may be involved in or interfere with matters with which an intelligence agency should not be concerned with, including politics, therefore was not put to rest,” Isa said in the verdict.

Pakistani opposition politicians and lawyers have vehemently opposed the government’s reported complaint against Isa. Additional Attorney General Zahid Ebrahim resigned from his post on May 29. He argued that the complaint was an attempt to tarnish Isa’s reputation and intimidate the judiciary.

Justice Qazi Faez Isa had remained in the news due to his strong dissent with fellow judges since his elevation in the Supreme Court in September 2014. Justice Isa wrote dissenting notes in high profile cases such as the 21^st amendment, the houbara bustard and on a matter related to the chief justice’s discretionary power to entertain public interest litigation. He also authored the judgment on the dismissal of National Accountability Bureau (NAB’s) appeal regarding reopening of Hudaibiya Paper Mills case against Sharif family.

Justice Isa had authored an 11-page dissenting note against majority judgment. Interestingly, during the tenure of Justice Jamali, full-court meeting was held to consider names of a few lawyers for giving them status of senior advocate of Supreme Court. During the meeting, unlike few senior judges, Justice Isa had strongly opposed to give status to those lawyers, who had supported ex-military ruler Pervez Musharraf’s November 3, 2007 PCO and emergency. Later, the full court did not give status of senior advocate to those lawyers. It is learnt that name of incumbent Law Minister Dr Farogh Naseem was also mentioned in that list.

Justice Qazi Faez Isa also differed with the opinion of SC senior most Justice Sheikh Azmat Saeed in Sheikh Rasheed’s disqualification case. He raised serious questions over the jurisprudence evolved in view of Panama Papers verdict regarding the disqualification of lawmakers, calling upon the apex court to make every effort to dispel any impression that different persons are treated differently. “Justice must not only be done, but be seen to be done as well. Every endeavour, therefore, should be made to resolve the prevailing legal uncertainty. The eligibility of members of parliament should be decided in accordance with one single and definite measure,” said Justice Isa in his 27-page dissent note.

He also raised seven questions while recommending that a full court settle uniform principles for the applicability of Article 62(1)(f) of the Constitution. Justice Isa believed that the court in the Panama Papers case clearly applied the strict liability principle, but it did not follow the strict liability rule in PTI chief Imran Khan’s disqualification case. He said that there are judgments of this court which apply the “principle or rule of strict liability” and hold that any nondisclosure or misdeclaration results in disqualification, giving the Panama Papers cases as examples.

-Nasir Mahmood