Barrister Usman Ali, Ph.D.
Pakistan’s judicial history has been complex, often contentious, and at times far from admirable. In several periods of this history, the judiciary has been criticized for siding with powerful interests and delivering decisions that effectively set aside the Constitution and the law in ways that aligned with the wishes of centers of power. At times, military rulers were allowed to reshape the constitutional order, while judges themselves appeared to stretch constitutional interpretation in ways that critics argue amounted to rewriting the Constitution.
Yet this same history also contains moments when judges chose to challenge powerful interests and refused to bow to pressure. Such judges often faced serious consequences. Attempts were made to discredit them, remove them from office, or push them out of the system through various means. However, when a judge’s record is clean and his position firmly rooted in constitutional principles, it becomes possible to resist such pressure. In reality, at such moments the authority of powerful actors is often weaker than it appears.
A notable example of this struggle in Pakistan’s recent constitutional history is the presidential reference filed against Justice Qazi Faez Isa following his judgment in the Faizabad sit-in case. What followed was not merely disagreement with a judicial decision. To many in legal circles, it appeared to be a concerted effort to isolate and discredit a judge who had clearly articulated constitutional limits.
The Faizabad sit-in case arose from protests in 2017 that paralyzed the federal capital. In his detailed judgment, Justice Isa examined not only the legality of the protest but also the role played by state institutions. He emphasized that no institution of the state stands above the Constitution. The decision stressed the principles of civilian supremacy, institutional discipline, and adherence to the rule of law. While many legal observers praised the constitutional clarity of the judgment, its frank tone unsettled certain powerful quarters.
The criticism that followed soon moved beyond legal disagreement. Narratives emerged questioning Justice Isa’s integrity and motives. Observers noted that the biases and intentions of the government at the time appeared not only in official actions but also in an organized political campaign. What was presented as accountability increasingly appeared to many as an effort to shape public opinion against a judge whose constitutional stance had become inconvenient for certain circles.
In 2019, a presidential reference was filed against Justice Isa under Article 209 of the Constitution, alleging non-disclosure of overseas properties owned by members of his family. The matter was sent to the Supreme Judicial Council. One troubling aspect of the process was that his wife, Sarina Isa, a private citizen, was also drawn into the proceedings. Dragging a judge’s family into such proceedings blurs the line between legitimate accountability and personal pressure.
Justice Isa challenged the reference before the Supreme Court. Both he and his wife maintained that they appeared before the Court with a clear conscience and full transparency. Rather than relying on technical defenses, they confronted the allegations directly. Evidence presented before the Court clarified the legal status of their financial affairs. Given that the procedure used to initiate the reference itself did not meet constitutional requirements and no concrete evidence of concealed assets existed, the Court ultimately had little choice but to dismiss the reference. The outcome was not a concession but a decision grounded firmly in law and fact.
In June 2020, the Supreme Court declared the presidential reference invalid. The Court stressed that constitutional procedures governing accountability must be strictly followed; otherwise accountability itself can become a tool of pressure.
This episode highlights an important principle: judicial independence is not the privilege of an individual judge but a constitutional guarantee. When judges face pressure for taking principled positions, the rule of law is weakened. Conversely, when constitutional procedures prevail, institutional dignity and public confidence are strengthened.
The measure of any constitutional democracy ultimately lies in how it treats judges who insist on constitutional boundaries. The dismissal of the presidential reference against Justice Qazi Faez Isa was therefore not merely a personal vindication; it reaffirmed the principle that the Constitution remains the final and decisive authority of the state.
This episode reminds us that defending judicial independence is not only the responsibility of judges but of the entire constitutional order. When judges clarify constitutional limits, the real test extends beyond the judiciary to the integrity of the state itself.
It also became evident that when a judge and his family have nothing to hide, as in the case of Justice Qazi Faez Isa and Sarina Isa, he can not only deliver independent and courageous judgments but also withstand sustained pressure.
Although the presidential reference against Justice Isa and its outcome are now part of history, it remains necessary to correct the historical record in the face of the one-sided narratives that surrounded the case. Justice Isa deserves recognition for striving, through his judgments, to reaffirm constitutional principles and help correct the course of Pakistan’s judicial history by placing the Constitution above all else.
For students of law in particular, an important lesson emerges. Rather than relying on the often biased and superficial narratives circulating on social media, they should examine the facts and evaluate judges through the lens of constitutional law and judicial reasoning. History ultimately judges judges by their decisions, not by who praises them or who opposes them.
In the end, the judicial history of any society is not written by who admired its judges or who opposed them. It is written by how faithfully they upheld the Constitution.
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