Apex court review to have lasting impact

ISLAMABAD:

The Supreme Court of Pakistan has conducted unprecedented proceedings in the Mubarak Sani case and their decision will have profound implications for the court's authority and minority rights in a country where religious extremism is on the rise.

This case is unique due to several reasons. Three different judicial orders and two written explanations have been submitted on this matter. Even now, a detailed judgement on the latest order is still awaited.

The controversy started in February 6 when bail was granted to a suspect charged with distributing a proscribed book, Tafseer-e-Saghee. Certain observations by the court on February 6 became the source of anger among religious parties in the country.

The SC, on February 22, issued a detailed explanation on the first judicial order. In order to counter the protest, the Punjab government filed a review petition which was taken up by the bench immediately. Different schools of ulemas were invited to give their input during the hearing of the Punjab government's review petition.

Finally, the SC's three-judge bench, led by CJP Isa, issued a judgement on Punjab government's review petition on July 24.

Despite the clarification on the issue, all political and religious parties joined hands against this order. Finally, the federal government moved an application seeking omission of some paragraphs of the July 24 judgement.

It was visible that no one came forward to defend CJP Isa's July 24 order. Even the present government, which has benefitted greatly from some the CJP's recent orders. started questioning the judgement. Finally, the stage was set on Thursday when Islamic scholars were again invited to redress their grievances om the order in this case.

It was witnessed that JUI-F Chief Maulana Fazlur Rehman was given utmost importance during the hearing. Before the announcement of the judgement, some ulemas, especially Maulana Fazl, went to the judges' chambers for a meeting.

Advocate Chaudhry Faisal Hussain believes that the JUI-F chief was the clear winner on Thursday. "Since the elections, JUI-F has been irrelevant, but the way Fazl has managed reemerge in the political landscape after a controversial judgment can at least be labeled a political masterstroke."

Hussain adds that from his arrival, to his departure after meeting judges in the chamber and getting a desirable outcome, can be safely termed as another "good to see you moment in the SC [for Fazl]",says the lawyer.

It has been learnt that JUI-F is likely to vote for the proposed judicial package in the parliament and Fazl's party's number, in both the Senate and National Assembly, are pivotal for constitutional amendment.

It has also witnessed been noted that the CJP Isa did not hear any representative of TLP or the SIC's head during the hearing. The bench did not even hear Sardar Latif Khosa who was representing the NA's Standing Committee on Law and Justice.

Lawyers are questioning how SC judges can meet the ulemas in their chamber before the announcement of an order. They termed Thursday's hearing as 'total surrender'.

A lawyer, expressing his disappointment, says that the SC has consistently reiterated the principle that courts and judges are not competent to interpret Islamic injunctions on their own.

"If the bench had been wise, it would have observed that in the light of the embedded principles, the observations to the extent of Islamic injunctions be treated as per incurium and if the Parliament felt it was competent, refer the matter to the Islamic Ideology Council. The ulemas would have also agreed. unfortunately, the bench undermined the SC's authority"

The lawyer says that SC's unique proceedings will have profound implications on minorities groups which are already facing serious challenges in society.

Even though some lawyers were aggressive toward him during the hearing, CJP Isa was showing restraint. On February 6, the top judge of the apex court observed that the SC must exercise extreme caution when handling cases involving matters of faith.

The chief justice, after authoring a five-page judgment, granted bail to Mubarak Sani who was charged with distributing the already mentioned proscribed book.

Advocate Hafiz Ahsan Khokhar, who represented Senator Sajid Meer in this case submitted, says that all the paragraphs of impugned orders 6/2/2024 and 24/07/2024 issued in the Mubarak Sani case, relating to Qadianis being non-Muslims, as declared through 2nd Constitutional amendment passed by Parliament of Pakistan, is contrary to Article 260(3) of the Constitution.

He said that according to the Constitution, law and Supreme Court judgment, Qadians cannot preach their version of Islam even covertly or in a veiled manner. He contends that these aspects have been completely ignored by the Supreme Court while issuing both orders.

The lawyer, therefore, believes that it is important that written observations on the subject. as decided earlier by Parliament and Supreme Court, should be declared nonexistent.

He contends that if this had not been done, there would have been permanent confusion in future, so the court should take this submission and decide the matter accordingly under Article 187 of the Constitution.

Hafiz Ahsaan says that deleting all relevant paragraphs in the landmark judgment will uphold the Constitution, and avoid a crisis. He believes such a move will address religious sentiments throughout Pakistan as per the true spirit of the Constitution, law and earlier judgments of the Supreme on the subject.

Former Pakistan Bar Council vice chairman Abid Saqi bemoans that the integrity and dignity of the Supreme Court have been compromised. "This is an unprecedented and extrajudicial act," adds Saqi.

Advocate Abdul Moiz Jaferii says it is understandable that eveyrone should look after their own lives and safety. "No one would have begrudged the chief today if he attempted to protect himself from life threats," he adds.

However, Jaferii believes that this was absolute surrender. "It was the Supreme Court laying its authority at the feet of a few self-declared wise men. We went from an attempt to establish the rule of law to a situation where a jirga was called by the Supreme Court chief justice to prove its own innocence. He was forgiven. The diyat he paid for forgiveness today was the concept of justice," Jaferii concludes.