'Restraint towards power circles': CJ's order raises questions

Senior lawyer says CJP Bandial only expressed anger towards the PDM-led government in the 32-page judgment

ISLAMABAD:

While Chief Justice of Pakistan Umar Atta Bandial’s order in the audio leaks commission charged the PDM-led government for the delay in the apex court proceedings and non-implementation of the judgements related to the Punjab Assembly elections, it notably showed extreme restraint about the conduct of other section of judges as well as powerful circles.

Senior lawyers pointed out that there may be another side to the story regarding questions raised on the conduct of the chief justice and his fellow judges that remains unrevealed. “Actually, CJ Bandial only expressed anger over the PDM-led government in the 32-page judgment,” a senior lawyer while commenting on the Supreme Court's Friday order said.

It is now an open secret that due to judicial politics, CJ Bandial faced numerous challenges within the Supreme Court during his tenure, particularly since the invocation of suo motu jurisdiction to hold elections for the Punjab and K-P assemblies.

Contrary to the chief justice’s claims, senior lawyers disagree that the PDM-led government reinvented the March 1 order in the elections matter. In fact, Justice Syed Mansoor Ali Shah had previously noted in his detailed judgment that the elections suo motu was dismissed by a 4 to 3 majority judgment.

The controversy surrounding the March 1 order was fuelled by the judicial opinions of Supreme Court judges, which were later seized upon by the PDM-led government to build a narrative against CJP Bandial and his like-minded judges.

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Had CJP Bandial formed a full court in the elections matter, the situation may have been different. Similarly, if he had agreed with Justice Shah's opinion to allow the Lahore High Court three days to decide on the Intra Court Appeal (ICA), the outcome could have been different as well.

When Justice Qazi Faez Isa ordered the postponement of all public interest cases until amendments were made to Supreme Court Rules, CJP Bandial did not convene a full court meeting. Instead, through the SC Registrar, he disregarded the judicial order.

On the other hand, Justice Athar Minallah and Justice Yahya Afridi dismissed the election case as "premature." In his opinion, Justice Minallah emphasised the need for "extreme restraint" in entertaining political questions, as public trust diminishes when the court is perceived as politically biased, with judges viewed as "politicians in robes."

Likewise, CJP Bandial and his like-minded judges failed to dispel the perception that they have a soft corner for the Pakistan Tehreek-e-Insaf (PTI).

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It is believed that there is a history of some judges being lenient toward PTI while being tough against the PML-N.

The PDM-led government was upset over CJP Bandial and his fellow judges about the interpretation of Article 63 A of the Constitution and Dost Mazari's ruling

However, the same section showed restraint in issuing a contempt notice to PTI chief Imran Khan over the May 25, 2022 order.

It is worth mentioning that last year, CJP Bandial enjoyed a cordial relationship with the security establishment. Former law minister Azam Nazeer Tarar even revealed that former army chief Qamar Javed Bajwa had urged the government to support CJP Bandial for the approval of his nominations for Supreme Court judges.

The purported relationship was strained after the suo motu proceedings about the holding of elections were initiated.

Silence over the 'role of establishment’

Notably, the September 8 order by CJP Bandial did not mention the role of the establishment or the in-camera briefing of senior military officers regarding the non-availability of army personnel for duty during the Punjab Assembly elections on May 14.

After the briefing, the defence ministry had moved an application requesting to hold general elections of assemblies on the same day.

However, during the hearing, the chief justice had termed the Ministry of Defence's application seeking elections across the country on the same day as 'non-maintainable'

Subsequently, a constitution petition was moved in SC on 'someone' desire to hold the elections on one day. Shah Khawar advocate had pleaded that petition but the SC order is silent about the timing regarding the filing of that petition.

A senior lawyer also expressed concern that although Attorney General for Pakistan Mansoor Awan had shown grace and avoided elaborating his contentions as to how CJP Bandial's conflict of interest was involved in the audio leaks commission matter, the order raised some questions on the AG's competence.

He said that AGP should respond to the court's observations about him. When judges did not show courtesy then he should also speak, he adds.