Pre-May 9 situation: Can the CJP rewind the clock?

ISLAMABAD:

The observations made by Chief Justice of Pakistan (CJP) Umar Ata Bandial in the ongoing week show that he is trying to take the country back to the situation when Pakistan Tehreek-e-Insaf (PTI) chairman Imran Khan was not arrested—before the May 9 incidents that changed the entire political scenario.

However, military leadership has given a strong message through a statement issued at the conclusion of the Formation Commanders Conference at the General Headquarters (GHQ). A senior government official believes that after this strong statement, it is difficult to revive the pre-May 9 situation.

A lawyer belonging to the ruling Pakistan Muslim League-Nawaz (PML-N) party said the statement issued by the military commanders on June 7 is also a message to the judiciary as well.

The May 9 mayhem had pushed on the defensive even those judges, who tried hard to hold the elections for the Punjab Assembly on May 14.

Later, they had no choice but to show restraint in matters in which confrontation between judiciary and other institutions—including parliament, executive, and security establishment—could intensify.

Now it is being witnessed that CJP Bandial has listed petitions against Justice Qazi Faez Isa-led inquiry commission that the federal government formed last month to investigate some leaked audio featuring voices of some serving and former members of judiciary and their family members.

Read SC indefinitely postpones hearing pleas challenging suo motu law

During the hearing of the audio leaks commission case on June 7, CJP Bandial wondered who had leaked the audio clips to social media and why the government had not taken any action against those people.

Meanwhile Shoaib Shaheen, lawyer for one of the petitioners Abid Zuberi, had claimed that the audios had started surfacing after an SC bench on February 16 requested the CJP to invoke his suo motu jurisdiction over the delay in elections for the Punjab and Khyber-Pakhtunkhwa assemblies.

The lawyer had even criticised the “role” of the state institutions in “releasing” the audios on social media. Surprisingly, the members of the bench had remained silent over his arguments.

The bench had reserved its decision on the government’s plea seeking recusal of three judges, including the CJP, from the bench hearing the audio leaks commission case on account of "conflict of interest".

The CJP had noted that the matter was about independence of judiciary as the principle of trichotomy of power was violated by not approaching his office to nominate judges for the inquiry commission.

During the ongoing week, the Election Commission of Pakistan (ECP) filed a review petition against the SC’s April 4 order to hold elections in Punjab on May 14.

In the ECP case too, the CJP made certain remarks, which might irk the federal government. The bench wants to decide the ECP’s review petition expeditiously.

Likewise, the same bench has also taken up the petitions against a new law, which has widened the scope of review in matters decided under Article 184-3 of the Constitution.

The bench is reluctant to endorse this law in a similar manner.

Read more 'How can civilians be tried under secrets act', asks PHC

A lawyer believes that it is the traditional view of the superior judiciary that it should show its supremacy over parliament when it comes to exercising its jurisdiction.

The superior judiciary does not even allow parliament to regulate its jurisdiction. The CJP is also visibly disturbed about the Pakistan Democratic Movement (PDM) parties' protest outside the SC premises.

A debate has kicked off as to whether or not the CJP would be successful in compelling the government to hold the elections for all assemblies before his retirement.

Some lawyers believe that the PTI chief's arrogance has wasted one section of the judiciary’s efforts to hold the general elections before September. Imran Khan missed the chance when he refused to sit with a PDM committee for finding a middle way about dissolution of the assemblies.

The same section of the judiciary is facing several challenges now. First, the powerful circles are annoyed with these judges on account of their proceedings in the matters of elections.

Secondly, the apex court is divided into two camps. There is a severe trust deficit among SC judges.CJP Bandial is continuing to include “like-minded” judges in benches hearing politically sensitive cases.

The leadership of the Professional Lawyers Group is fully backing the CJP in the prevailing situation.

Also read SC adjourns loans write-off case indefinitely

There are reports that members of the same group are considering starting a movement to support CJP Bandial so that he could ensure the elections before his retirement.

On the other hand, the Independent Lawyers Group is standing with the government.

It also endorses the formation of the audio leaks commission led by Justice Isa. However, both groups of lawyers agree that civilians must not be tried in military courts under the Pakistan Army Act, 1952.

It is still debatable as to whether CJP Bandial and his “like-minded” judges will be successful in holding the elections before September. It is also unclear whether or not the CJP will be able to protect Imran from disqualification or conviction in any matter.

This can only happen if he receives the support of all the SC judges—a development that appears to be unlikely in the near future.

Former additional attorney general Tariq Mahmood Khokhar said the country is witnessing the beginning of an Orwellian nightmare.

"Constitutional issues are increasingly becoming less susceptible to judicial resolution. They may as well have become non-justiciable. Constitutional decision-making is no longer the exclusive domain of the superior judiciary.  There are other actors outside the courts.

“No one realistically expects a show of judicial defiance in the face of raw power," he added.