SC again fails to give a message of unity

Two judges’ refusal to hear pleas against military courts dampens lawyers’ excitement

ISLAMABAD:

The judges of the Supreme Court have lost another opportunity to give a message to the public that they are a “united institution” when it comes to upholding the rule of law and the Constitution.

On Thursday, lawyers’ excitement was dampened when the next chief justice of Pakistan (CJP), Qazi Faez Isa, and the SC’s third senior most judge, Sardar Tariq Masood, refused to sit in the larger bench hearing petitions challenging the trial of civilians in military courts until the court makes a final decision about the SC (Practice and Procedure) Act 2023, a law that regulates CJP's discretionary powers.

The Supreme Court (Practice and Procedure) Act 2023 was suspended in April by an eight-judge larger bench comprising CJP Umar Ata Bandial’s “like-minded judges”.

Some experts believe that CJP Bandial should have consulted Justice Isa about his availability before forming the nine-member larger bench given the fact that Justice Isa had not been sitting in any court bench for the last couple of months.

Justice Isa revealed in an open court that on a query of CJP Bandial, he had explained in writing why he was not sitting in court benches. Justice Isa believes that the Supreme Court (Practice and Procedure) Act, 2023 which regulates the CJP's discretionary powers cannot be suspended by the court.

A law can either be struck down or endorsed, he said.

The judge said he was expecting that the final decision on the fate of this law would be given soon. However, the stay on operation of the law still continues.

Some lawyers are also not happy with Justice Isa for taking a hard stance.

They believe that when all judges including those who are ideologically close to him are sitting in benches then Justice Isa should do the same.

Differences among apex court judges allegedly started when the Supreme Court in September 2019 took up Justice Isa and his wife’s petitions against a presidential reference that accused him of hiding his family members’ foreign assets and sought his removal.

No sincere efforts were made to end the perception that judges are divided. A legal expert said a difference of opinion is different from a clash within an institution on the manner of its working.

No full court meeting has been held for the last three years. He said Justice Syed Mansoor Ali Shah has rightly described the CJP’s powers as a one-man show.
Political supporters’ opinions about these judges are also divided.

Ruling parties are accusing CJP Bandial while the supporters of the Pakistan Tehreek-e-Insaf (PTI) are criticizing Justice Isa of partiality.  Some experts believe that judges need to improve their perception in this polarized environment. The division in the SC is weakening the institution and its moral authority.

On Thursday, a seven-member larger bench heard the petitions against military courts when the two SC judges refused to hear the matter. The judges expressed their reservation over the procedure adopted to transfer cases from anti-terrorism courts (ATC) to military courts.

At the end, CJP Bandial through Attorney General for Pakistan Mansoor Awan sent a message to the establishment that lawyers should not be harassed and journalists should be freed.

It is witnessed that the military establishment is very emotional about the May 9 incidents and there is a debate as to what will be the implications for the judges if they halt trials of civilians in military courts. Incumbent CJP Bandial is retiring on September 17.

"To paraphrase Lincoln, the nine-member bench today recorded yet another 'astonisher' in our checkered judicial history. The recurrence of such 'astonisher' on the rump (reduced numbers) bench cannot be ruled out," said former additional attorney general Tariq Mahmood Khokhar.

“The formation of a larger bench has not placated the implacable. The incident has not done justice or equity. The schism in the SC is deeper than previously imagined," he added.