A view from outside Pakistan's Supreme Court building in Islamabad. Photo: AFP / Aamir Queshi

The killing of George Floyd at the hands of police officers in the US city of Minneapolis has resulted in a snowball effect on the politics of that country. President Donald Trump, as always was careless in handling the aftermath of Floyd’s death, and his inability to assess the gravity of the situation after countrywide protests erupted appears to have changed the dynamics of the electoral race for the presidency.

US Defense Secretary Mark Esper on Monday differed with Trump on using force against the protesters. Not only Esper, but former defense secretary James Mattis accused Trump of trying to divide the US over the death of Floyd, an unarmed black man, at the hands of police.

No one could have predicted a month before that Trump, who despite showing a lack of leadership skills in the fight against Covid-19, was set to win the presidential race against a potentially weaker candidate like Joe Biden, would now be facing such a scenario, where now his chances of winning the November presidential election are becoming grimmer.

The brutality of Floyd’s killing is also evidence that when political leaders bring racism and hatred into their election campaigns, they actually polarize society, to an extent that they themselves cannot bring the sanity and unity back to their society. 

Perhaps if the US ever needed a sane president like Bernie Sanders, this was the time, as he could have brought back unity to a politically divided society, but the Democratic establishment made sure he would not stand in the race for the presidency. In any case, Floyd’s case is just one example of how it takes only one moment of poor judgment to put an entire political regime at risk of sinking.

In Pakistan the case against Justice Qazi Faez Isa may be triggering a similar snowball effect against the PTI (Pakistan Tehreek-e-Insaf) government, a hybrid regime backed by the military establishment.

A presidential reference against Isa was filed after he made one of the bravest decisions in the judicial history of the country by concluding that the establishment had backed the Faizabad sit-in in 2017 organized by the Islamist Tehreek-e-Labbaik party. (Under Pakistani law, the president may advise the courts on how to proceed with a judicial matter, and this is called a “presidential reference.”)

After the presidential reference was filed, Isa’s character was assassinated through a controlled section of the press. However, he fought back, and the government and its backers both are now caught in a Catch-22 situation.

The case against Isa, in which he is accused of hiding his wife’s and children’s assets, is weak, as no one can be held responsible for the assets of his adult children or spouse unless he is benefiting from them. Such is the state of affairs that even the federal government’s lawyer Farogh Naseem, who is known for twisting the constitution in favor of the powers that be, is struggling in the Supreme Court to defend the presidential reference against Isa.

The judicial proceedings in the case and remarks of the judges are clearly indicating that Isa is standing on the right side of the history and remains one of the few honest judges in Pakistan’s higher courts.

This also raises questions over the skills and abilities of Farogh Naseem, who first mishandled the effort to extend the tenure of General Qamar Javed Bajwa as Chief of Army Staff, embarrassing both Bajwa himself and the government, and now again is unable to defend his bosses, both invisible and visible. Thus Isa has become a problem for both the government and the establishment.

If they let Isa prevail, it will set an example that a free and fair judge who does not take dictation can freely render judgments without being sent packing. That would mean the end of fear factor for many of the people in different government departments, including the judiciary.

On the other hand, if somehow by maneuvering the proceedings the government and its backers are able to throw Isa out and win the case, it could trigger another lawyers’ movement. Former dictator General Pervez Musharraf made that mistake in the case of then-chief justice Iftikhar Muhammad Chaudry, and he paid the price by losing his crown.

The current main contender for the throne, former prime minister Nawaz Sharif, though out of the country for medical treatment would only need a few lawyers protesting on the streets to further his cause. He has the experience and the ability to turn such demonstrations into a large movement and could hold protests across the country with the help of the bar associations.

It is going to be a tough ride ahead for the PTI government, as Isa is unlikely to step back even if he is denied justice. This raises the question of who actually persuaded the government to file such a weak reference against a person like Isa, who unlike former chief justice Mian Saqib Nisar never tried to intervene in the domain of the executive and was free of any bias and prejudice against any stakeholders on the power chessboard.

In fact, even the strictest authoritarian regimes allow certain dissenting voices to prevail in order to show a brighter side of their dark face.

The other question is how long lawyers like Sharifuddin Pirzada and Farogh Naseem will be allowed to twist the constitution in favor of the powerful. Civilized and democratic countries are run only through constitutions, not through the fear factor or by amending their constitutions according to the requirements of the establishment and its allies.

Constitutional supremacy is unquestionable, and we have seen how the toxic legacy of Saqib Nisar has pushed Pakistan into chaos and brought a bad name on to the judiciary. One can find millions of people like Nisar, but honest people like Isa are rare.

It is integrity and character that matters, and Isa has shown that he possesses both, as like Nisar he could have chosen a path of comfort by aligning with the invisible forces and taking dictation in his judgments, but he chose to uphold the constitution and refused to bow down to any other power.

For a judiciary tainted with the allegations of aligning with dictators and always providing validity to direct and indirect military rule, and which hanged one elected prime minister and sent two others packing, it is time to correct the course of history.

If the killing of George Floyd can shake the regime of President Trump,  there is always a chance that again invoking the doctrine of necessity and denying justice to Isa may prove costly to the PTI regime. After all, like Trump’s, the foundation of this regime was laid upon the politics of hatred and division – a hatred that is increasing and a division that is unlikely to be finished even if the genuine political leadership tries its best.

So in a divided country, there are judges like the late Muhammad Munir and Saqib Nisar and supportive lawyers like Sharifuddin Pirzada and Farogh Naseem who manipulate the laws of necessity to stray from the constitution. However, on the other side, for many Isa keeps alive the hope that eventually the judiciary can retrieve its credibility that was lost during the Nisar era, and can restore the supremacy of the constitution.

The men sitting at the helm of affairs need to understand a simple point, that from the Agartala Conspiracy Case of the 1960s to the hanging of Zulfikar Ali Bhutto in the 1970s and the disqualification of Nawaz Sharif in 2017, such decisions are remembered as the results of a doctrine of necessity to benefit the establishment while damaging the interests of the country on both the political and economic fronts.

Also, some politicians who were convicted through vague decisions emerged even more powerful and popular. In the end, there are no individuals but the country that matters, and the country’s survival and progress are dependent on the supremacy of constitution as upheld by judges like Isa.

Imad Zafar is a journalist and columnist/commentator for newspapers. He is associated with TV channels, radio, newspapers, news agencies, and political, policy and media related think-tanks.

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