Isa's retirement looms with no successor in sight

Ruling coalition still aims for major overhaul of judiciary

ISLAMABAD:

With just 12 days left until Chief Justice of Pakistan Qazi Faez Isa's retirement, uncertainty still hangs in the air regarding his successor, as the government has yet to issue a notification.

The federal government is pulling out all the stops to push through a constitutional amendment implementing major changes in the judiciary, labelled a "judicial package".

Since taking power, the government has been focused on this judicial package to get a firmer grip on the judiciary. However, progress has been stymied by several factors, particularly a letter from six Islamabad High Court judges and a decision regarding reserved seats.

However, things changed drastically in the ruling coalition's favour when CJP Isa paved the way for a constitutional amendment.

Following the government's loss of its two-thirds majority in parliament, CJP Isa took up a review petition concerning the interpretation of Article 63-A of the Constitution.

The larger bench led by CJP Isa ultimately ruled that the votes of defecting lawmakers would be counted under Article 63-A, giving the government the green light to seek their votes for the constitutional amendment.

Reports indicate that coercive measures are being employed to secure a two-thirds majority following this judicial order. Government officials claim they can manage the majority without the Jamiat Ulema-e-Islam-Fazl (JUI-F).

As lawyers challenge the proposed constitutional amendment in the high courts, CJP Isa has scheduled a hearing for a petition from the Pakistan Bar Council on October 17.

Petitioner Abid Zuberi has filed an appeal against objections from the Registrar's office regarding the constitutional petition. Instead of being resolved in chambers, the matter has been listed before a three-judge bench led by CJP Isa, leading to speculation among lawyers about the implications of this fixation.

One faction fears that the SC hearing may interfere with high court proceedings, while another speculates that the bench's proceedings could facilitate the passage of the 26th constitutional amendment.

The government aims to push through the amendment during CJP Isa's tenure, viewing him as a guarantor of the current system. However, some believe CJP Isa might surprise everyone with an unexpected ruling before his retirement, though such chances seem slim.

Farieha Aziz, who challenged the amendments in the Supreme Court Practice and Procedure Act 2023 via ordinance, has raised questions about the fixation criteria, expressing concern over the lack of a hearing for her petition against the ordinance, which was filed before the petition regarding the proposed constitutional amendment.

It is an open secret that the judiciary plays a crucial role in countering Pakistan Tehreek-e-Insaf (PTI).

Under CJP Isa's leadership, the superior judiciary has faced criticism for weakening its authority in the name of parliamentary supremacy.

PTI chief Imran Khan has been convicted in three cases without due process, yet the superior judiciary has remained silent on ensuring proper legal procedures in these cases.

The PPP has expressed satisfaction with the larger bench's decision regarding the presidential reference to revisit the Zulfiqar Ali Bhutto murder case, while the Pakistan Muslim League-Nawaz is pleased that the same bench led by CJP Isa annulled Nawaz Sharif's lifetime disqualification.

Notably, PTI has not received significant relief during CJP Isa's tenure.

CJP Isa has predominantly presided over benches adjudicating matters related to the February 8 general elections, and PTI has consistently expressed distrust towards him. Despite various applications, PTI has failed to remove its political cases from the bench led by CJP Isa.

It is evident that the government and the Pakistan Bar Council have aligned in recent years, both advocating for the establishment of a Federal Constitutional Court (FCC) with a retirement age for judges set at 68.

While CJP Isa has announced his retirement, some lawyers believe PML-N will endeavour to create an FCC under his leadership. However, JUI-F opposes the establishment of the FCC and the continuity of CJP Isa.

If CJP Isa is unwilling to assume any role post-retirement, he should take measures to safeguard the integrity of his institution before stepping down. The government faces obstacles in stabilising the FCC and superseding senior-most judge Justice Syed Mansoor Ali Shah for the CJP position.

Lawyers are vocal against the proposed constitutional amendment, highlighting the government's apprehensions regarding Justice Shah's appointment as CJP.

Justice Shah has historically been at odds with PTI, and the government is dissatisfied following the July 12 order concerning reserved seats.

Many lawyers argue that the judicial package aims primarily to block Justice Shah's elevation to CJP.

Despite some government factions suggesting Justice Shah's notification as the next CJP to avoid backlash from the legal community after passing the 26th constitutional amendment, the situation remains tenuous and fraught with potential instability.