Judicial reforms still shrouded in mystery

ISLAMABAD:

As ambiguity over the judicial package looms large, the federal government is neither issuing a notification to appoint Justice Syed Mansoor Ali Shah as the next chief justice of Pakistan, and nor has present CJP Qazi Faez Isa hinted in his recent speech that he will retire on October 24.

Although CJP Isa, in his informal discussion with some journalists, has stated that government officials had discussed the tenure of the chief justice of Pakistan, but he refused to extend his own through this proposal.

However, it is not clear whether CJP Isa will continue in office in case the government increases the retirement age of all superior courts judges for three years. It has been learnt that the government has made all preparations to bring a 'judicial package' through a constitutional amendment. This week is crucial in this regard.

However, lawyers are concerned over how the government will reach the required numbers in both houses of Parliament. Since the government came into being, a committee has been working on judicial reforms. A senior government official tells The Express Tribune that Justice Syed Mansoor Ali Shah is also aware of the government's plan on the judicial package.

At the end of April, it was decided that instead of fixing the tenure of the CJP, the retirement age of all judges should be extended for three years. However, the government was disappointed by the SC's decision to suspend the Election Commission of Pakistan (ECP) notification to allocate 77 reserved seats of the National and provincial assemblies to other parties after it refused to give them to the Sunni Itehad Council (SIC).

The bench, in this case, was led by Justice Syed Mansoor Ali Shah. After a May 6 interim order, the government lost two-thirds majority in parliament. Later, a three-judge committee, on May 30, discussed the formation of a larger bench in the reserved seats case.

During the meeting, there was initially talk of excluding judges who might be caught in a conflict of interest if the reserved seats remained with the government, potentially paving the way for constitutional amendments affecting their tenure.

However, the idea was abandoned in favour of forming a full court. Justice Munib Akhtar dissented, preferring a seven-member bench based on seniority, excluding those who might need to recuse themselves.

Justice Akhtar's proposal was to retain the original three-member bench and add four more judges in order of seniority. However, the majority opted for a full court, surprising many, including the petitioners.

Meanwhile, the government was more disappointed with the July 12 majority order in which it was held that reserved seats should be allocated to PTI.

CJP Isa was in the minority in the reserved seats case. Although the present government functionality was not affected through the July 12 order, the majority of eight judges faced immense criticism. A visible rift was witnessed among senior SC judges after the July 12 order.

Four days after short order, the PML-N filed a review petition and the same was included in the meeting of the committee on July 18.

Two judges rejected CJP Isa's opinion about the early fixation of PML-N's review petition against the July 12 order. CJP Isa, being a member of the committee, issued a strong dissenting opinion about non fixation of the review petition. In the meanwhile, Election Commission of Pakistan (ECP) stopped the implementation of the July 12 order and did not allocate reserved seats to PTI. The commission approached majority judges, seeking guidance about the implementation of short the order. However, the SC is yet to respond the ECP.

A three-judge bench, led by the CJP, restored the ECP decision on the recounting of votes in three constituencies of the National Assembly. Subsequently, PML-N gained three seats in the NA.

Likewise, a five-judge larger bench, led by CJP Isa, suspended the Lahore High Court order regarding the appointment of election tribunals in Punjab.

Now, the judiciary is divided and the executive is taking advantage of this situation, further weakening it through proposed legislation.

Lawyers believe that the government may succeed for the time being, but this proposed legislation on the judiciary will not be sustainable. A lawyer was of the view that the government will still try to negotiate with Justice Syed Mansoor Ali Shah. The present regime wants a guarantee regarding the continuity of the system.

It remains unclear whether JUI-F will support the constitution amendment to introduce the 'judicial package'. Earlier, it was witnessed during the hearing of the second review petition in the Mubarak Sani case that JUI-F Chief Maulana Fazlur Rehman was given utmost importance.

In 2015, eight judges that the independence of judiciary is a salient feature of the Constitution and if an amendment affects the independence of judiciary, then it can be struck down. The present SC judges' strength reflects that if the constitution amendment will be violative of independence of judiciary, then the same will be struck down.

If the government wants the endorsement of any such any constitutional amendment, it needs to increase the number of SC judges first to strengthen CJP Isa.

One section of lawyers believe that the government just wants to put pressure on the next CJP through a debate on the judicial package, otherwise it is still short of the required numbers.

They say that situation will clear next week, which is very crucial for judiciary.