Like all segment of society, sharp polarisation within Supreme Court has remained dominant in outgoing year (2023), which has also weakened the institution's position to deal high profile sensitive cases.
Even first time parliament is able to regulate the internal working of the apex court by enacting Supreme Court Practice and Procedure Act 2023 where discretionary powers of chief justice of Pakistan have been structured.
Cracks appeared in the apex court when a full-court had taken up Justice Qazi Faez Isa’s petition against a presidential reference that accused him of hiding his family members’ foreign assets and sought his removal in 2019.
Recent division within SC – on the composition of benches, listing of cases and appointment of superior courts judges – widened since February when the court invoked its suo motu jurisdiction and took notice of delay in announcement of polls in two provinces.
During the first hearing of suo motu case, one judge (Justice Jamal Khan Mandokhail) had raised objection over the inclusion of two judges (Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi) in the nine-member larger bench.
Justice Mandokhail said that both judges have already expressed their opinion by stating that elections are required to be held within 90 days and that there was imminent danger of violation of the Constitution".
Subsequently, ex CJP Bandial reconstituted a five-member larger bench by excluding four judges.
Later, controversy emerged over the non-issuance of the order of the court in suo motu case. Four judges were of the view that suo motu was premature and high courts should be allowed to adjudicate the elections issue.
In the meanwhile, a majority bench led by Justice Qazi Faez Isa had restrained to hear public interest matters until amendments in Supreme Court Rules about the constitution of the special benches.
Ex CJP Bandial disregarded this judicial order through SC Registrar notification. Later, he formed a six-member larger bench comprising by his like-minded judges to overturn Justice Isa's judicial order.
Ex CJP Bandial also formed an eight-member larger bench comprising his like-minded' to take up petitions challenging Supreme Court Practice and Procedure Act 2023.
The eight-judge bench on April 13 suspended the SC Practice and Procedure Act, 2023.
Subsequently, harsh words were also being exchanged between Justice Isa and ex CJP Bandial in his chamber.
Since enactment of Supreme Court Practice and Procedure Act 2023, Justice Isa did not become part of any bench. When nine-member larger bench was formed to hear petitions challenging the trials of civilians in military courts, Justice Isa and Justice Sardar Tariq Masood refused to sit in the bench until final decision on Supreme Court Practice and Procedure Act 2023.
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Both parliament and executive utilized the gulf among SC judges. First legislation was promulgated to regulate the CJP's discretionary powers. Second, an inquiry commission led by Justice Isa was formed to probe the authenticity of audio leaks and their implications on the judiciary.
The inquiry commission was formed without consultation of ex CJP Bandial.
Justice Bandial and his like-minded' judges were visibly upset over the formation of commission.
A five-judge larger bench led by ex CJP Bandial stayed the inquiry commission's proceedings. The matter is still pending in apex court.
It is also being witnessed that differences among senior judges were also emerged over the appointment of SC judges.
After the retirement of ex CJP Bandial, it was expected that efforts will be made to end the display of differences among SC judges.
Incumbent CJP Qazi Faez Isa summoned the full court on the very first day of his office.
Likewise, the full court was formed to hear petitions against SC Practice and Procedure Act 2023.
First time, the full court on administrative side by majority allowed the live broadcast of the case proceedings on PTV.
After few hearings, the full court by majority 10 to 5 declared Supreme Court Practice and Procedure Act 2023 as unconstitutional.
After the majority order, a three-judge committee led by CJP Qazi Faez Isa and comprising Justice Sardar Tariq Masood and Justice Ijazul Ahsan started its function. Under the law, the committee will form benches and decide the maintainability of public interest cases filed under Article 184 (3) of constitution.
It is being witnessed that Supreme Court continues to grapple with internal discord reminiscent of the previous tenure under former chief justice Umar Ata Bandial, persisting even as CJP Qazi Faez Isa leads the judiciary.
The perception of factionalism within the apex court remains, with judges aligned with former CJP Bandial's camp voicing dissent with current CJP Isa on significant matters since September 17.
One member of the committee Justice Ijazul Ahsan has raised objections on the benches formed to hear two high profile cases
Justice Ahsan objected the constitution of six-members larger bench hearing the federal government's intra-court appeals against judgement wherein it was declared that trials of civilians in military courts are unconstitutional.
Similarly, Justice Ahsan wanted that bench comprising senior judges should hear Justice Sayyed Mazahar Ali Akbar Naqvi's petition against Supreme Judicial Council proceedings of misconduct against him. Justice Ahsan's letter has been made public on SC website on his request. Subsequently, CJP Isa also gave response over his letter which is also available on website.
Supreme Judicial Council has issued show-cause notice to Justice Sayyed Mazahar Ali Akbar over the complaints of misconduct against him. Justice Ijazul Ahsan did not endorse the issuance of show cause notice.
Conversely, Justice Naqvi has levelled accusations of bias against CJP Isa and Justice Sardar Tariq Masood. He has requested their recusal from the SJC panel. Presently, Justice Naqvi is expressing concerns about the prolonged delay in the fixation of his constitutional petition concerning SJC proceedings.
A complainant, Mian Daud, has lodged objections against Justice Ijazul Ahsan's participation as a member of the SJC, on several grounds, in Justice Naqvi case.
Read more Five SC benches formed for next week
No top court judge has so far been ousted by SJC in the country.
It is clear that final fate of Justice Naqvi case will be decided next couple of months.
Similarly, senior judges in the SC also appear divided on issues concerning the appointment of judges.
The Judicial Commission of Pakistan (JCP), a constitutional body responsible for considering the appointment of judges to superior courts, appointed Justice (retd) Manzoor Ahmad Malik as its new member with a majority decision of 3 to 2.
Manzoor Malik has been appointed for two years. Under the law, the CJP, in consultation with other four judicial members, appoints retired judges.
Reports indicate that Justice Ijazul Ahsan and Justice Munib Akhtar opposed Manzoor Malik's appointment.
Manzoor Ahmad Malik was among the majority judges who had accepted Justice Isa and other review petitions against ex-CJP Bandial's decision to refer the SC judge's family property matter to the Federal Board of Revenue (FBR) for inquiry.
JCP majority members approved the constitution of the committee led by Justice Syed Mansoor Ali Shah to consider amendments to JCP rules.
One nominee each from five high courts and five bar councils will be taken in the committee which will submit its report by January 15.
Justice Syed Mansoor Ali Shah and Justice (retd) Manzoor Malik are chairman and co-chairman of a committee tasked to draft amendments and come out with a set of criteria in the Judicial Commission Rules determining the elevation of judges to the superior judiciary.
However, two members Justice Ijazul Ahsan and Justice Munib Akhtar opposed the constitution of the committee.
Polarisation
In the meantime, the top court’s challenging conundrum as judges navigate the external polarisation driven by political affiliations within society has raised concerns about potential influences on judicial proceedings.
There's a palpable worry as certain judges appear to garner support from distinct political factions. PTI’s followers express unease over CJP Isa's private secretary's response to Imran Khan's letter, while PML-N supporters question Justice Ijazul Ahsan's oversight of the trial involving the Sharif family during the Panama case.
Similar divisions surface in Justice Naqvi's case, with one faction supporting one party rallying behind him while the other faction, including bar leaders, voice opposition.
Divergence in opinions within the institution can be constructive if rooted in logic and reason rather than personal biases.
The independence of the judiciary remains a cornerstone for the country. The prevailing situation prompts contemplation: will it fortify or weaken the superior judiciary? With Justice Ijazul Ahsan slated to potentially become the next CJP in ten to eleven months, history will be the ultimate arbiter of the question.
Meanwhile, it is fact that SC led by CJP Isa is ensuring the holding of general elections on February 8.
The apex court is continuously making efforts to ensure that the upcoming general elections take place on their appointed date of February 8.
The court has held that postponing general elections to address delimitation of the constituencies could lead to a vacuum in governance and a potential crisis of legitimacy, a situation that will be antithetical to the principles of democracy and the larger good of the people.
The top court has also given a clear message to the high courts that interference in the process of elections will not be acceptable.
The court also asked ECP to ensure level playing field to PTI in the general elections.
Senior lawyers are convinced that ensuring the free and fair elections on February 8 can only possible through SC's consistent interference.
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Currently, the apex court led by CJP Isa is adjudicating several high profile cases like presidential reference regarding the revisiting of former PM Zulfiqar Ali Bhutto death sentence judgement, treason case against ex-military ruler Pervez Musharraf and ex-IHC judge Shaukat Aziz Siddiqui's petition against removal by SJC and implementation of Faizabad Dharna case judgement wherein inquiry commission has already been formed.
These cases hearing are likely to remain dominant next year along with matters related to elections.
A larger bench is also going to review the effect of ex CJP Bandial's judgement wherein it was held that disqualification under Article 62 (1) (f) would be lifetime. The seven bench will take up the matter on January 2.
Abdul Moiz Jafferii Advocate said that there are some very crucial events in which the judiciary will face several make or break moments in terms of the public trust. "Events such as the elections and cases related to political individuals will put the Supreme Court squarely in the public eye with very little room to manoeuvre"
Jafferii further said that it is up to the Qazi court to shake allegations of connivance, influence and timidity which have plagued the tenures of former chief justices Saqib Nisar, Gulzar Ahmed and Bandial.
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