Where is an embattled Supreme Court headed?

ISLAMABAD:

An immediate full court meeting is the need of the hour at the Supreme Court to end what many experts are calling an 'ongoing judicial civil war'. Justice Qazi Faez Isa's career as SC judge has been marred with controversies.

His relationship was not cordial with ex CJPs, namely Mian Saqib Nisar, Asif Saeed Khosa and Umar Ata Bandial. He had also raised objections over the formation of a larger bench by ex CJP Anwar Zaheer Jamali in the houbara bustard case. His dissenting/additional notes and letters to then CJPs were being widely published on certain issues.

However, it is a fact that he was mostly right on his stances during those CJPs' tenures. After taking on the role of CJP in September last year, it was expected that unlike some of his predecessors, he would unite the SC as an institution.

Yet he dampened the hopes of his many supporters within the judiciary, lawyers, media and civil society on account of his approach toward one political party. CJP Isa totally failed to end the perception that he is aggressive toward PTI, the party with which he had strained relations ever since the filing of a presidential reference for his removal. Due to his controversial decisions in high profile cases, many compare his tenure with ex CJP Mian Saqib Nisar, who became known as an anti PML-N CJP.

After the resignation of Justice Ijazul Ahsan and removal of Mazahar Ali Akbar Naqvi, it was hoped that differences among SC judges would end. However, some judges, who were considered to have similar views as Chief Justice Isa's, have started to dissent with his opinion.

Some of his 'like-minded' judges were upset over his January 13 order in which the PTI's intraparty election was declared as illegal. Subsequently, the party was removed from the election system. They believed that SC should not lend its shoulders to powerful circles against one political party.

The relationship between CJP Isa and Justice Athar Minallah were affected after the writing of six Islamabad High Court judges' letter regarding the interference of agencies in judicial functions. Since the July 12 order in the reserved seats case, the relationship between CJP Isa and Justice Syed Mansoor Ali Shah had also been strained. CJP Isa was in the minority in that case. He also took some steps related to Justice Mansoor Ali Shah which further dented their relationship.

Dr Yasser Kureshi, who recently wrote a book on the history of judicial politics, said that in Pakistan, the publication of competing notifications, questions and letters by SC judges, always indicated that all is not well among the senior judges.

"That these competing notifications have now come from the current and future CJs shows that relations have soured between these once-close judges and is reminiscent of similar notifications issued between Justices Bandial and Isa when they were the current and future CJs and their relationship was at its lowest ebb," he said.

He also said that the current clash seems to be about the role the Supreme Court will be willing to play in supporting the attempts of the current ruling coalition to consolidate power against all its rivals, both within the PTI and within state institutions, particularly the judiciary. "The future role of the judiciary in Pakistan's political system is at stake in this fight that will play our over the next month."

Kureshi says perhaps the most significant contribution of Justice Isa's tenure in court, thus far, was his willingness to clip the discretion of the chief Justice to curb arbitrariness and favoritism in bench selection in cases.

"If he is willing to go back on this by implementing the presidential amendment to the practice and procedure act, seemingly in order to ensure the court can issue judgments that favour the current ruling coalition and its captured election commission, it risks damaging the most significant part of his legacy," he adds.

Some lawyers believe that July 12 order on the reserved seats case was an attempt to halt the progress of the judicial package through a constitution amendment. However, they are wondering why the relationship between senior SC judges has remained tense after the July 12 order. It is presumed that both the executive and the CJP Isa are on the same page over the July 12 order. Both are annoyed with the role of Justice Shah who was once in their good books.

With one month left for his retirement, CJP Isa has taken some actions which further deepened the crisis in the institution. Instead of calling a full court meeting, he started implementing amendments in the SC Practice and Procedure Act 2023 which were inserted through an ordinance.

During his tenure, he held a full meeting on two occasions. The CJP convened the meeting on the very first day of his office and the second was when he took up the petition on the SC Practice and Procedure Act 2023. He endorsed the three-member committee for the formation of benches and fixing of public interest cases.

CJP Isa was being widely appreciated on account of ensuring the transparency within institutions. He surrendered his discretionary powers before the committee. During his predecessors' tenures, he objected to the formation of larger and special benches comprising likeminded judges.

Although there are serious questions on the composition of larger benches hearing matters related to Punjab election tribunals, trial of civilians in military courts, Mazhar Ali Akbar Naqvi matter etc, no one could point fingers that those benches were formed by the committee.

When he faced difficulty to fulfill his plans in the committee, the government made amendments in the SC Practice and Procedure Act 2023 through an ordinance. Instead of discussing the controversial ordinance among senior SC judges, CJP reconstituted the committee and replaced the third senior most judge, Justice Munib Akhtar, with Justice Aminuddin Khan, who was fifth in the line of seniority.

After his inclusion in the committee, a debate started as to whether the era of likeminded judges had returned with the CJP including them in the composition of larger benches to achieve desirable results.

Interestingly, CJP Isa changed his earlier opinion and excluded Justices Syed Mansoor Ali Shah and Yahya Afridi from the larger bench hearing a petition against Article 63-A judgment. Earlier, on July 18, he proposed both judges' inclusion in the larger bench.

It is being expected that Justice Munib Akhtar may recuse himself from sitting on the larger bench hearing review the petition against Article 63A judgement. This is on account of the amendments in the SC Practice and Procedure Act. It is mandatory that at least the author of the judgement should be part of the bench

One section of lawyers is questioning the timing of the fixation of this review petition against the judgement, which held that vote of defecting lawmakers will not be counted in view of Article 63-A of Constitution.

When JUI-F is not supporting the proposed constitution amendment, the outcome of this matter is very significant. A lawyer lamented that now CJP Isa is contradicting everything he stood for earlier. Former additional attorney general Tariq Mahmood Khokhar stated that the Supreme Court has once again become an arena for intra-institutional conflict.

"The CJP's personality and actions are a major contributing factor: he CJP is too brittle, and too quick to take offence. He deals with his brother judges in a brutal way. Many see him entwined with the established order to the detriment of the constitution, rule of law, democracy and his own institution. "The prospect of his further appointment, along with his crude attempts to marginalise the senior puisne judge and the second senior most judge, have resulted in a severe reaction from his fellows" says Khokhar.

Barrister Asad Rahim Khan stated that the consequences of the Practice and Procedure Act are revealing themselves early: step one was to mangle the constitution and encroach upon the judges' domain; step two was for the president to leapfrog over parliament and commandeer the judicial branch itself.

"A door that should never have been opened has now been pulled off its hinges, as many feared it would – cases will now be fixed by the grace of an executive fiat," the lawyer said.

He also said that Justice Mansoor Ali Shah is right. "The chief justice's decision to exclude the second senior-most judge has zero reasoning. And yet those behind the current crisis have one goal: a constitutional amendment, subsequent to the Article 63A judgment being overturned. At no point since 2007 has the independence of the judiciary been so fraught" asserts Barrister Asad Rahim Khan.

Lawyers agree that solution of this crisis is to hold a full court meeting. They say if CJP Isa does not convene it, it will be presumed that he is in the minority in the SC. However, CJP Isa should have realized that the integrity of institution is more important.