Audio leaks: SC judges not on same page

ISLAMABAD:

The Supreme Court (SC) is yet to form a unanimous opinion on the leaked audio which went viral on the social media regarding fixation of a case before a particular bench or judge.

Even though an informal full court meeting was held on Friday to discuss the situation that emerged after the audio leaks, it has been learned that the judges’ opinion is divided about the future course of action.

Since Justice Qazi Faez Isa’s case, the top court judges are divided into two ideological camps. Details of the informal full court meeting suggest that the division may further deepen after the recent audio leaks.

It is also being witnessed that Justice Jamal Khan Mandokhail and Justice Athar Minallah are not part of the bench hearing criminal cases in the ongoing week. Both judges are hearing criminal cases along with Justice Sayyed Mazahar Ali Akbar Naqvi since the past one month. Justice Naqvi is still heading the bench, but the two other judges are not part of the bench this week.

Even Justice Mandokhail was included in the bench according to the final cause list. Despite his availability, he was not part of the bench. Now the bench number six comprises Justice Naqvi and Justice Shahid Waheed.

Senior lawyers believe that if the top court remains silent then the situation may further affect its working.

Apart from other issues, the two supposed camps are facing a brewing mistrust on the issue of judges' appointments. However, legal experts connect the dots back to a number of events in recent years, especially the ‘Justice Isa factor’.

It is understood that Justice Isa's case has severely affected the working of the apex court. The proceedings in the case have negatively affected the relationship between SC judges, who expressed their differences through judicial orders, speeches and letters.

This is in many ways unprecedented as no such divisions were witnessed during the era of former chief justice Iftikhar Muhammad Chaudhry under whom no judge had ever dissented on any crucial issue.

Although some clashes between the top court’s judges came to the fore during the ex-CJ Mian Saqib Nisar's tenure, the top judge handled the situation tactfully.

However, Justice Isa had raised serious questions over the manner in which public interest litigations were initiated by the human rights cell of the top court during former chief justice Nisar’s tenure. He had also expressed serious concerns over the dissolution and reconstitution of a bench by the former CJP at the SC’s Peshawar Registry on May 8, 2018.

After seven months, another judge, Justice Syed Mansoor Ali Shah, called into question the May 8 reconstitution of an apex court bench and called the decision “unwarranted and unprecedented”.

Prior to this, Nisar had taken up a constitutional petition challenging the appointment of Justice Isa as the chief justice of the Balochistan High Court (BHC). However, he later dismissed the petition after lawyers voiced their concerns.

Interestingly, incumbent CJ Umar Ata Bandial was a member of the bench which rejected the petition against Justice Isa's appointment.

SJC proceedings

In May 2019, another wave of the clash was triggered when Justice Isa raised questions about the conduct of the Supreme Judicial Council (SJC) led by ex-CJ Asif Saeed Khosa. Justice Isa later went on to accuse the SJC as biased against him.

Subsequently, he challenged the SJC proceedings against him in the apex court. Superior bars, too, joined him in contesting the SJC proceedings against him.

When the apex court took up the petitions against the SJC proceeding, the counsel for Justice Isa said that two judges, namely Justice Ijazul Ahsan and Justice Sardar Tariq Masood had a direct interest in the case against Justice Isa. He argued any judge who had a personal stake in the case, should not be attached to it.

However, the presiding judge, Justice Bandial was visibly upset at the counsel's request regarding the recusal of two judges. However, both judges decided to recuse themselves from the bench.

The matter was referred to ex-CJ Khosa for the constitution of the full court. A ten-member full court resumed the hearing of Justice Isa's case.

In June 2020, the majority of the judges referred Justice Isa's family's matter to the Federal Board of Revenue (FBR) for inquiry and a fresh report before the SJC within a specific period of time. Incumbent CJP Bandial had authored a detailed majority judgement wherein Justice Isa's family matter was referred to the tax department for inquiry. However, the lawyers had unanimously expressed serious concerns over his ruling.

In April 2021, a majority of the judges overturned CJ Bandial's ruling by accepting Justice Isa and other review petitions. It was witnessed that SC judges also exchanged harsh words during the hearing.

Even CJ Bandial in a minority judgment had held that Justice Isa should have explained his position before the SJC regarding his family properties.

A judgement given by the three judges of the apex court had also expressed serious concerns over Justice Munib Akhtar’s view that the majority judgment in Justice Isa's case was not a binding future legal precedent.

Ex-CJP Gulzar and Justice Isa

The relationship among SC judges went on a low ebb during ex-CJ Gulzar Ahmed's tenure on account of their differences regarding the elevation of junior judges to the SC as well as the exclusion of senior judges from the benches hearing high-profile cases.

Gulzar had passed an unprecedented order that held that Justice Isa should not hear cases related to former prime minister Imran Khan. Interestingly, incumbent CJ Bandial was the signatory of that order.

Secondly, an unprecedented order was passed by then-acting CJ Bandial by annulling the suo motu proceeding initiated by a division bench led by Justice Isa regarding the protection of journalists.

Senior lawyers believe that both orders were unprecedented and uncalled for. The conflict among the senior judges widened after these orders.

During CJ Bandial's tenure, Justice Isa questioned the composition of benches to hear high-profile cases without his consultation. He also expressed serious concern over the summoning of the Judicial Commission of Pakistan (JCP) meeting in his absence as he was abroad on summer vacation.

On July 28, a majority of JCP members did not approve CJ’s nominees for their elevation to the SC. Later, the top judge initiated dialogue with senior judges on the matter of elevation but the deadlock persisted.

Last year, senior puisne judge Justice Isa and Justice Sardar Tariq Masood had expressed dismay over CJ Umar Ata Bandial’s speech at the new judicial year ceremony, saying he “said much more” than what he was supposed to say at the event.

However, it is being witnessed that both judges were not included in any special/larger bench hearing high-profile political cases since last February.

Former additional attorney general Tariq Mahmood Khokhar says that the causes and consequences of the reference against Justice Qazi Faez Isa had set a dangerous precedent. It should be no surprise that it has come back to haunt an institution and its disparate members. It was delusional to think that a stance against one would not affect the immunity of others.

Worryingly, there is already a talk of reciprocity of debts, he adds.