Faizabad sit-in: Justice Isa says govt’s fact-finding panel empowered to summon former PM, ex-COAS, then-CJP

Chief Justice of Pakistan Qazi Faez Isa on Wednesday said the government’s newly formed fact-finding commission, tasked with probing the 2017 sit-in by Tehreek-i-Labbaik Pakistan (TLP) at Faizabad, was empowered to summon the former prime minister, ex-army chief and then-CJP for investigation.

“The commission can call anyone for investigation … no one is exempt,” he stated.

The top judge’s remarks come as a three-member Supreme Court bench took up a set of review petitions filed against the SC’s 2019 judgement in the Faizabad dharna case. The bench, headed by Justice Isa, comprises Justice Athar Minallah and Justice Aminuddin Khan.

Authored by Justice Isa years before he took oath as the chief justice, the searing judgement had instructed the defence ministry and the tri-services chiefs to penalise personnel under their command who were found to have violated their oath.

It had also directed the federal government to monitor those advocating hate, extremism and terrorism and prosecute them in accordance with the law.

Adverse observations were also made against several government departments for causing inconvenience to the public as the 20-day sit-in paralysed life in both Islamabad and Rawalpindi.

Pleas were subsequently moved against the verdict by the Ministry of Defence, the Intelligence Bureau, the PTI, Pemra, the Election Commission of Pakistan (ECP), the Mutta­hida Qaumi Movement (MQM), AML chief Sheikh Rashid and Ijazul Haq.

However, most of the petitioners withdrew their pleas, prompting the CJP to ask “why is everyone so afraid to speak the truth”.

During the previous hearing, former Pemra chief Absar Alam had made revelations on the interference of intelligence agencies and “media coercion” during the Faizabad sit-in.

In an order issued on the petitions earlier this week, the SC had stated that it expects the government to finalise the fact-finding probe on the sit-in within the specified time frame. It had also granted ECP a month to prepare and submit a report on the TLP and its funding.

During today’s proceedings, Attorney General for Pakistan (AGP) Mansoor Usman Awan informed the apex court that the federal government had formed a new fact-finding commission to probe the sit-in.

The new committee, comprising three members, is tasked with probing and identifying persons responsible for the sit-in and recommend legal action against them. It will submit its findings in a report to the federal government within two months.

The hearing

At the outset of the hearing today, the court dismissed Rashid’s review petition after the AML chief appeared before the bench and said he wanted to withdraw his appeal.

Addressing the former minister, the top judge asked why Rashid had filed a petition when he wanted to withdraw it later. This case was stuck in a limbo for four years, the CJP remarked.

The AML chief said there were some “misunderstandings”. Here, Justice Isa stated that petitions could not be filed on the “orders coming from above”, adding that “everyone knows the truth but no one is courageous to say it out loud”.

For his part, Rashid said it had become difficult to speak the truth these days and clarified that no one had forced him to file the review petition.

“This is not a joke that you will file petitions whenever you want to and withdraw them whenever you wish to,” the chief justice interjected. At the same time, he continued, the question also arises why the appeals were not fixed in such a long time.

“Was the Supreme Court being controlled by forces outside the court at that time?” Justice Isa asked. “First and foremost, we are to be held accountable.”

Subsequently, AGP Awan came to the rostrum and submitted the notification pertaining to the freshly formed fact-finding committee.

Here, CJP pointed out that ministers and MNAs who were in power when the sit-in took place were responsible. “If you called for arson and chaos, stand by it. Say you supported it,” he remarked.

At that, Rashid started making his way to the rostrum but he was stopped by Justice Isa. “We are talking to your lawyer not you,” he said. Meanwhile, Justice Minallah noted that Rashid was a respectable parliamentarian and clarified that the court did not pass any remarks on him.

The CJP commented on the notification, noting concerns about the inclusion of currently serving individuals in the commission, as their ongoing service could be impacted.

On the other hand, Justice Minallah said every institution should perform its own duties. “Don’t make us do what was done at one time by using powers under Article 184 [of the Constitution],” he stated.

Justice Isa then said the court could not doubt the commission beforehand and subsequently dictated the order of the day.

He said the AGP had told the SC that an addition would be made in the TORs of the fact-finding commission to determine if review petitions against the Faizabad dharna were instructions or a coincidence.

The commission, Justice Isa continued, would be empowered to call anyone for investigation and no one would be exempted. It is also empowered to call the names taken by Absar Alam, the ex-prime minister, ex-army chief and the former chief justice, he said.

“We will now hear this case after two months,” he added and adjourned the hearing.

Govt forms new commission

The government had constituted a fact-finding committee last month to ensure compliance with directions included in the 2019 judgement. It had comprised additional secretaries of the ministries of defence, interior and the Inter-Services Intelligence (ISI) and was expected to furnish its final report to the defence ministry by Dec 1.

However, CJP Isa had rejected the committee during the previous hearing, remarking that the exercise was an “eye wash”. He had also raised questions on the terms of reference (TORs) of the probe.

The new fact-finding commission comprises former KP inspector general of police Akhtar Ali Shah, ex-IGP Tahir Aslam Khan and Interior Ministry Additional Secretary Khushal Khan.

As per the notification’s TORs, which have been seen by Dawn.com, the commission is tasked with inquiring into illegal financial or other support provided to TLP for undertaking the Faizabad dharna and the events that followed.

It is responsible to recommend actions against those who issued fatwas or edicts during or in relation with the sit-in, inquire into the inaction of Pemra against broadcasters and cable operators who violated the law, and examine the spread of hate and violence through social media and recommend measures to deal with it.

The commission will also “fix responsibility of any person and/or government officers including those working with intelligence agencies” and determine if any disciplinary proceedings or legal action was required to be taken against them.

Furthermore, it will suggest measures for police to handle such rallies and recommend a framework for the federal and provincial governments to effectively monitor and prosecute those who advocate hate and extremism.

The committee, after compiling all the record and evidence, will submit its report to the federal government within two months.

The petitions

The IB’s review petition had urged the court to set aside the adverse observations made against the department, adding that it was a premier civilian intelligence agency which was responsible for state security.

It had contended that the impugned order created a “bad impression” on the public that the IB was involved in unlawful activities and politics, after transgressing constitutional boundaries.

It had said the observations made in the verdict were based on “vague facts” and that during the sit-in, the department was in close contact with the federal and Punjab governments and forewarned them about the plans and intentions of the TLP, with a view to foiling their attempt to storm/lockdown Islamabad.

Meanwhile, In response, the defence ministry had requested the court to set aside the explicit or implicit observations about the armed forces and/or the Inter-Services Intelligence (ISI).

The ministry’s petition had said that a host of factors may affect morale. However, it said, what was fatal was the belief amongst the rank and file that their officers while acting like “self-proclaimed saviours” were violating the fundamental rights of citizens and instead of serving “Pakistan and thus all its citizens”, supporting a “particular political party, faction or politician”.

“…When the source of such remarks is the highest court in the land, it can promote fissiparous tendencies and has the capacity to destroy the ability of the armed forces to act as a cohesive fighting force,” the review petition had argued.

It had further said there was no evidence before the court to suggest that the armed forces or ISI were, in any manner, involved with either the sit-in or a particular outcome of the general elections of 2018 or the abridgement of free speech or intimidation or censorship of the press.

In its petition, the ECP had contended that it had comprehensively applied and enforced the Constitution, law and code of conduct by issuing a letter to the TLP on Aug 16, 2017, asking the party to provide details of its bank account and even had issued notices to it with a warning to cancel its registration.

Meanwhile, the PTI had questioned the mention in the verdict of the 2014 joint sit-in organised by it and the Pakistan Awami Tehreek in Islamabad, and had said the impression one gets from it was that the party conducted an illegal protest for publicity and deliberately made wrong allegations.

The petition contended that the party had nothing to do with the TLP Faizabad sit-in and therefore the remarks should be expunged.

Rashid had approached the court to remove his name from the judgement. In his petition, the AML chief pleaded that if the words concerning him in para-4 of the judgement were not expunged, he would suffer adversely in his life.

Faizabad sit-in

Daily life in Islamabad was disrupted for 20 days (from Oct 2 to Nov 27, 2017) when protesters belonging to religiopolitical parties occupied the Faizabad Interchange which connects Rawalpindi and Islamabad through the Islamabad Expressway and Murree Road, both of which are the busiest roads in the twin cities.

The agitators claimed that during the passage of the Elections Act 2017, the Khatm-i-Nabuwwat oath was deliberately modified as part of a larger conspiracy. The amendment to the oath was deemed a “clerical error” by the government and was subsequently rectified through an act of Parliament.

The government had attempted to negotiate in vain with the protesters to end the sit-in several times. Finally, it launched an operation to disperse the protesters, in which at least six people were killed and scores others injured. After the botched operation, the government decided to call in the army for help.

Negotiations were undertaken with protesters once again, and the government accepted a number of their demands in return for ending the protest. The agreement document bears the signatures of then interior minister Ahsan Iqbal, TLP chief Khadim Hussain Rizvi, and Gen Faiz Hameed among others.