CJP Bandial hangs up his robes

As Chief Justice of Pakistan Umar Ata Bandial doffed his robes on Saturday as the country’s 28th chief justice, marking the end of a six-year era dominated by "like-minded" chief justices.

Bandial’s time as the country's top adjudicator was notable for both landmark and controversial decisions, making him a highly discussed figure in the history of the judiciary. As he bids adieu, Justice Qazi Faez Isa, a senior judge from Balochistan, will assume the position of the country's new chief justice.

However, the chief justice’s time in office and his legacy remain a topic of intrigue. Since the appointment of former CJP Mian Saqib Nisar as chief justice in January 2017, the 'pro-PTI mindset' of chief justices has been in the driving seat in the Supreme Court.

During their tenures, there was a noticeable display of what observers deemed “judicial arrogance” which resulted in the undermining of civilian supremacy by striking down various legislations and a challenging period for the executive branch.

On the other hand, they were perceived as working in concert with the establishment since January 2017.

Both Mian Saqib Nisar and Umar Atta Bandial declared former prime minister Imran Khan as ‘Sadiq and Ameen’ (truthful and honest). Meanwhile, Asif Saeed Khosa and Gulzar Ahmed disqualified PML-N chief Nawaz Sharif in the Panama case.

With the exception of Asif Khosa, the remaining three chief justices primarily governed the top court’s affairs with like-minded judges, many of whom have retired while others still occupy the benches.

Disparity and factionalism

A recent study conducted by three Karachi-based lawyers has shed light on the disparity in the inclusion of judges in special and larger benches over the past six years. The lack of transparency in bench composition and case fixation during this period has also fuelled factionalism within the Supreme Court.

In order to bolster factional alliances, seven junior high court judges were elevated to positions in the SC, disregarding the principle of seniority, in the last six years. Interestingly, no objective criteria has been devised for the appointment of these junior judges. Their elevation has been based solely on the personal preferences of four chief justices.

This arbitrary appointment of junior judges, without the consensus of all parties involved, has been identified as one of the key factors contributing to the current division within the apex court.

Consequently, there is widespread frustration among senior judges within the high courts regarding the elevation of these junior judges.

While some senior judges have vehemently opposed their appointment to the Supreme Court without the establishment of objective criteria, there are now concerns that the new CJP, Qazi Faez Isa, may take up petitions challenging the elevation of these junior judges.

During the last six years, Justice Qazi Faez Isa also faced a tough time from four chief justices and was being excluded from special/larger bench taking politically sensitive cases.

Meanwhile, there were reports pointing to the role of an alleged nexus between some SC judges and top brass of the previous security establishment in the filing of a presidential reference against Justice Isa seeking his removal.

Even Justice Isa had accused the Supreme Judicial Council (SJC) led by ex-CJP Khosa of harbouring a bias against him and had raised serious questions on the conduct of SJC in the apex court.

Earlier, ex-CJP Saqib Nisar had taken up a constitution petition challenging the appointment of Justice Isa as Balochistan High Court Chief Justice. Likewise, ex-CJPs Gulzar Ahmed and Umar Atta Bandial had observed that Justice Isa should not hear cases related to ex-prime minister Imran Khan.

Since May 2019, no significant matter related to the interpretation of the constitution has been fixed before Justice Isa's bench.

However, despite all their resistance, the CJPs failed to block Justice Isa’s ascension to the seat of the country’s chief justice.

On the other hand, PML-N supporters have accused the last four chief justices of keeping biases against the party’s leadership, particularly following the Panamagate proceedings.

It was alleged that, except for Asif Saeed Khosa, the previous chief justices had close ties to the former Director General of the Inter-Services Intelligence (ISI), General Faiz, who is said to have played a significant role in manipulating judicial procedures.

Furthermore, these four CJPs have been unable to dispel the perception that they are favourably inclined towards the PTI and that they have connections with the establishment, working against the PML-N and other opposition party leaders.

During their tenure, these chief justices were known for their strong stance on holding politicians accountable, especially those affiliated with the PML-N and the PPP.

However, when the PTI and the establishment found themselves at odds last year, it put CJP Bandial and his like-minded judges in an awkward position.

The jurists supported the toppling of the Imran Khan-led regime by quashing the former deputy speaker of National Assembly Qasim Suri’s ruling and when the process regarding the implication of Article 95 of the Constitution was being delayed, CJP Bandial famously opened the court’s doors at night. This move had earned the top court PTI’s fierce criticism.

Nonetheless, CJP Bandial and like-minded' judges gave an important judgement on the interpretation of Article 63 A of the Constitution.

The PTI was being facilitated to hold a rally in Islamabad and former deputy speaker of Punjab Assembly Dost Mazari's ruling was also set aside.

‘Silence about establishment’

These actions have categorised CJP Bandial as a pro-PTI judge, following in the footsteps of his predecessors. However, it is important to note that throughout his career, he refrained from questioning the conduct of powerful circles.

Cases concerning missing persons were not prioritised during his tenure, and when judicial proceedings were seemingly manipulated in the high courts, CJP Bandial remained silent. Moreover, when he attempted to facilitate the holding of general elections for the Punjab Assembly within the stipulated 90 days, he faced substantial resistance from the establishment.

Notably, just one day before his retirement, CJP Bandial restored the graft cases against PPP and PML-N leaders by striking down the amendments in NAB law. The judgement will define his legacy.

Throughout his tenure, CJP Bandial has been known for his dual affiliations as being both 'pro-establishment' and 'pro-PTI'. However, it remains noteworthy that whenever the interests of these two groups have clashed, the Chief Justice has attempted to reconcile their differences, as they both fall within his 'constituencies'.

On the other side of the political spectrum, the Pakistan Democratic Movement (PDM)-led government had posed a significant challenge to CJP Bandial. The campaign against him launched by the PDM made his time in office far from smooth.

Moreover, the CJP has been unable to secure the support of the PDM-led government in the appointment of SC judges, leaving one seat within the apex court still vacant.

Despite this, a section of lawyers believes that CJP Bandial belongs to the school of thought that gives tough time to the political elite on financial integrity. However, this school of thought is silent about the financial affairs of the establishment.