A view of the Supreme Court of Pakistan, Islamabad - Reuters/Akhtar Soomro

 

Divide in Judiciary: Have the Senior Most Supreme Court Judges Switched Roles?
By Hasnaat Malik
Islamabad, Pakistan

 

Chief Justice of Pakistan (CJP) Umar Ata Bandial has lamented that efforts are being made from outside to divide the judiciary. However, little has been done to combat the atmosphere of mistrust among the Supreme Court judges.

Division within SC -- on the composition of benches, listing of cases and appointment of superior courts judges -- has widened since February when the court invoked its suo motu jurisdiction and took notice of delay in the announcement of polls in two provinces.

However, cracks appeared in the apex court when a full court took up Justice Qazi Faez Isa’s petition against a presidential reference that accused him of hiding his family members’ foreign assets and sought his removal.

CJP Bandial has not been able to end the perception so far that he only includes his “like-minded” judges in benches hearing political matters. Two senior most SC judges—including Justice Isa—have been continually ignored during formation of benches hearing sensitive cases.

A section of lawyers believes that instead of reacting, Justice Isa should wait for his turn—he is going to be elevated as the CJP in September this year—and then take steps for ensuring transparency in appointment of judges, composition of benches and listing of cases.

On March 30, Justice Isa in a judicial order held that hearings of all cases under Article 184 (3) be postponed until amendments in the SC rules about the constitution of special benches. However, CJP Bandial discarded this judicial order through a notification by the SC registrar.

Subsequently, Justice Isa had asked the government to repatriate the services of the registrar. However, CJP Bandial formed a six-judge larger bench which set aside Justice Isa's order.

Later, CJP Bandial formed an eight-judge larger bench to review the Supreme Court (Practice and Procedure) Act 2023.
The CJP included like-minded judges in the bench, which suspended the law which sought to regulate the CJP's discretionary powers about composition of benches and listing of cases.

Since the enactment of the SC Practice and Procedure Act 2023, Justice Isa has not been hearing cases and is only doing chamber work.  When CJP Bandial wrote a note to Justice Isa to know about his availability for a bench, Justice Isa explained as to why he is not sitting in bench.

The federal government found an opportunity to exploit this division by constituting a commission—led by Justice Isa—under the Inquiry Commission Act 2017 to probe the veracity of audios involving some serving and former judges and their family members.

The government also included two other high court judges in the commission without consulting CJP Bandial.  Although there is no requirement in the law to consult the CJP while forming a commission, the judicial norm is that the CJP is consulted.

Lawyers who belonged to the Professional Lawyers Group are supporting CJP Bandial's view that the “very constitution of the commission is cast in doubt.”
The Independent Group is, however, backing the government. The Pakistan Bar Council dominated by the Independent Group has summoned a meeting of its executive committee to discuss the matter.

CJP Bandial noted on Friday that nomination of judges without his consent is a violation of trichotomy of power and affects the independence of the judiciary.
He also said that probing audio leaks would override the working of the Supreme Judicial Council as a five-judge that he was leading stayed the inquiry commission’s proceedings.

Although the inquiry commission adjourned its proceedings on account of the stay order, Justice Isa on Saturday raised more than a dozen questions about the larger bench's order.
The SC's larger bench has issued notices to all respondents including the inquiry commission through its secretary.  It is expected that the commission would soon submit a written reply.

Everyone is waiting for the commission's response.
Some lawyers highlight how the two senior most SC judges have switched their roles.

In Justice Isa case, CJP Bandial was laying emphasis on unearthing the truth about the foreign properties owned by the Isa family. Now Justice Isa, being head of commission, says the truth must be revealed about audio leaks.

Now CJP Bandial believes that nomination of judges to the inquiry commission is affecting the independence of the judiciary. Earlier, the reference against Justice Isa was being construed as an attack on the independence of the judiciary.

Now Justice Bandial and Justice Munib Akhtar are emphasizing the importance of privacy under Article 14 and are relaying Justice Syed Mansoor Ali Shah's opinion in the Justice Isa case while Justice Isa is saying that privacy is not absolute.
Today the PDM-led government is hostile towards CJP Bandial. Earlier, the PTI led government was campaigning against Justice Isa. The situation is identical, but the characters have switched roles.

Both judges agree that the judiciary has only moral authority for enforcement of its orders. One group of the SC judges may prevail over the other group in this ongoing war but the Supreme Court as whole will be the loser as it will lose its moral authority completely.

Sanity must prevail before anything worse happens to the institution. – The Express Tribune