Divided we stand: Supreme Court judges still poles apart

Lawyers see little hope of a patch-up

ISLAMABAD:

Despite planting flower plants on the lawns of the Supreme Court as part of the spring tree plantation drive jointly by Chief Justice of Pakistan Umar Ata Bandial and senior puisne judge Justice Qazi Faez Isa, and issuing of a statement by the latter rubbishing the impression of a separate group in the apex court the other day, there was no end to the debate that all is well behind the façade of harmony and the move would help end differences among the top court justices.

Senior lawyers The Express Tribune spoke to are not optimistic about seeing a congenial atmosphere in the court, saying the issues among senior judges of the top court with regard to the composition of special/larger benches, fixation of constitutional petitions and appointment of judges would unlikely be resolved anytime soon.

“Nothing will change even after this joint plantation of flower plants,” said a senior cabinet member, adding, “The chief justice will have to do a lot more to improve the court atmosphere.”

“There exists a lot of trust deficit. He will have to go out of the way to earn the other side’s confidence."

It is pertinent to mention here that Justice Isa is not part of any bench formed to take up cases next week. In fact, he hasn’t been part of any bench since the enactment of the Supreme Court Practice and Procedure Act, 2023.

However, he, being chairman of the enrollment committee, has been conducting interviews of lawyers to award them licences to practice in the Supreme Court.

Read Plea against inquiry commission rejected

Under the new law, a committee comprising three senior-most judges, including the chief justice, will form benches and fix cases in the apex court. The stay has already been granted by an eight-member “like-minded” larger bench of the apex court, led by Chief Justice Umar Ata Bandial.

The composition of the bench suggests that factionalism still persists in the apex court. This is clear from the fact that three future chief justices are not part of the bench, in addition to the absence of any judge from Khyber-Pakhtunkhwa and Balochistan. Now, the government is requesting the eight-member larger bench to form a full court.

Lawyers believe “mistrust among the judges is the main reason for not constituting a full court”. “If the chief justice does not form a full court, then it becomes clear that mistrust among judges persists.”

Until a final decision on the SC Practice and Procedure Act, the hearing of which will resume next week, is made, Justice Isa is unlikely to sit in on any bench. This dampens the hope among senior judges to see a “silver lining”.

Two senior judges -- Justice Isa and Justice Sardar Tariq Masood -- have never been included in the benches hearing politically high-profile cases throughout CJ Bandial's tenure. Likewise, senior Supreme Court judges are divided on the nomination of judges for their elevation to the top court to fill two seats vacant for the last several months.

Moreover, CJ Bandial has fixed for hearing a seven-year-old constitutional petition before a bench led by Justice Sardar Tariq Masood.

The bench will take up on June 9 a Jamaat-i-Islami (JI) petition seeking directions against 436 individuals, who had allegedly stashed fortunes in offshore companies.

Another issue causing friction among the justices relates to the inquiry commission probing the audio leaks. In this case, too, the chief justice formed a like-minded five-judge larger bench to hear petitions against it.

As expected, the bench has granted a stay on the working of the commission. Now, the commission has sought the recusal of three judges, including the chief justice of Pakistan, from the larger bench. The same plea was made by the federal government. The hearing will resume on June 6.

It is learnt that one section of the Supreme Court judges does not want Justice Isa to lead the inquiry commission.

Yet another issue among the justices is the initiation of a misconduct proceeding against Justice Sayyed Mazahar Ali Akbar Naqvi. The Supreme Court is divided on his matter. One section of the judges wants that the Supreme Judicial Council should initiate proceedings against him.

After a lapse of several months, CJ Bandial, being chairman of the SJC, has sought the opinion of Justice Sardar Tariq Masood about the complaints of misconduct against Justice Naqvi.

Justice Isa case has severally affected the working of the Supreme Court. The case is a source of tense relations between Justice Isa and CJ Bandial. The two judges reportedly exchanged harsh words a couple of times.

Lawyers say that though there might be a ceasefire between them until September, it is unlikely that the two will work together in the next three months.

They say that it is not uneasy to forget the bitter past. Another big issue is that SC judges are feeling insecure among them. There is apprehension that during Justice Isa's tenure as CJP,  the elevation of junior judges to the SC will be declared illegal.

However, there is less chance that the majority of  SC judges will endorse any such move.