Will CJ pass coercive orders before retirement?

ISLAMABAD:

Chief Justice of Pakistan (CJP) Umar Ata Bandial is set to retire on September 16, after around 50 days. However, he still keeps some cards close to his chest—verdicts that may determine his legacy as well as the course of the country’s politics.

During his term, the CJP has, however, failed to get full support or his own institution—the Supreme Court of Pakistan—which now stands divided.

His working relationship with the senior puisne judge and his notified successor, Qazi Faez Isa, has remained tense in all these months and the top judge has consistently relied on eight of his “like-minded” judges while hearing cases of political nature. 

Last week, Justice Bandial allowed a government plea for withdrawal of a curative review petition in Justice Isa case. However, in his order, he could not signal reconciliation, losing the last opportunity of unifying the SC judges against external forces. 

Some experts believe that CJP Bandial is faced with two more challenges. 

There has been a degree of mistrust between CJP Bandial and the establishment since February when he invoked suo motu jurisdiction to hold elections for two provincial assemblies within 90 days. Despite his efforts, the CJP could not succeed in forcing the authorities to hold elections in Punjab on May 14.

The government is also apprehensive about the possible outcomes of some pending cases. 

Experts are speculating as to what will be the final ruling of a bench led by Justice Bandial which is hearing petitions against trial of May 9 rioters in military courts. 

The government has so far been reluctant to carry out legislation for giving the alleged rioters the right to appeal against military courts decisions. Hearing of the case will resume on August 1. It will be interesting to see how the CJP finds a middle ground acceptable for all sides. 

Some lawyers believe that the SC may issue some coercive observations against functionaries of the government after possible dissolution of the National Assembly in the second week of August. 

Since announcement of its judgement on interpretation and scope of Article 63 A of the Constitution, there is also a mistrust between the government and the top judge. Several times, the government requested the court to form full court to hear various matters but the CJP did not accept the request. 

It will be interesting to see how the apex court will react if Finance Minister Ishaq Dar who belongs to the ruling Pakistan Muslim League-Nawaz (PML-N) is appointed as the caretaker prime minister. 

The CJP has yet to issue judgments on the government's plea seeking three judges’ recusal in the audio leaks commission case. A three-member bench led by the CJP has already reserved its judgement on the petitions challenging the Supreme Court Review of Judgements and Orders 2023. 

The same bench is also to unveil its verdict on the Election Commission of Pakistan (ECP) review petition against the court’s April 4 order to hold elections in Punjab on May 14. 

Hearing of the Supreme Court Practice and Procedure Act 2023 is yet to conclude. 

The CJP had also reserved decision on former prime minister Imran Khan’s petition against amendments in the National Accountability Ordinance (NAO) 1999. The decision is still awaited. 

A debate is under way as to whether CJP Bandial will be successful in securing Imran Khan from disqualification. The CJP did not take notice over the new law which has limited the disqualification of lawmakers for five years under Article 62 (1) (f) of the Constitution. 

Some lawyers believe that in order to leave a legacy, the CJP will issue some coercive orders and that his remaining term is going to be “eventful”. A lawyer believes that CJP Bandial will try to give a tough time to the government but will fail. 

One section of lawyers says that CJP Bandial has already played his innings and will avoid to issue rulings against any side. He will leave some matters for history to decide, they add. 

Controversies 

Justice Bandial took oath as the CJP on February 1 last year. 

Throughout his term, he did not include two senior judges—Justice Isa and Justice Sardar Tariq Masood—in larger or special benches hearing politically sensitive cases. 

These benches comprised his 'like-minded judges'. Despite the accusation of favouritism in the composition of benches, Justice Bandial did not bother to address this issue. 

The SC is already divided with eight judges on one side and eight on the other. 

One section of judges has serious reservations about the CJP’s discretionary powers to form benches, list cases, invoke suo motu jurisdiction and initiate misconduct proceedings regarding the removal of superior courts judges. 

So far, he could not address these concerns.