Acrimony at its peak

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ISLAMABAD:

A clash has intensified between the judges of the Supreme Court's regular benches and those appointed to its constitutional benches (CB), formed in accordance with the 26th Constitutional Amendment, 2024.

Now judges from both sides have started passing judicial orders and remarks against each other—something which was unprecedented in recent judicial history.

This trend of questioning each other's conduct publicly will give more confidence to the executive to further weaken the judiciary as an institution.

The superior judiciary started weakening, when chief justices began to form benches comprising "likeminded" judges to get favorable judicial orders in high profile cases with potential to shape national politics. Since the era of former chief justice Mian Saqib Nisar, SC judges have been divided into two camps.

Divide among judges increased, when the PTI led government filed a presidential reference seeking removal of Justice Qazi Faez Isa. One section of judges was also interested in ousting him. However, they could not succeed in the end.

Judicial politics intensified when Qazi Faez Isa took oath as the top judge. Two SC judges—Ijaz ul Ahsan and Sayyad Mazahar Ali Akbar Naqvi, who were originally not in Isa's rival camp, were forced to resign last year.

Even a larger bench led by Aminuddin Khan held that the Supreme Judicial Council (SJC) could proceed against retired judges under Article 209 of the Constitution.

There is perception that the purpose of ruling was to oust Mazahar Ali Akbar Naqvi on account of misconduct after his resignation. After the SC ruling, the SJC declared Naqvi guilty on several charges.

After the SC's reserved seats verdict of July 2024, clashes among SC judges further intensified.

One section of judges in their minority view had held that the institutions are not bound to implement "unconstitutional judicial orders". The same section of judges led by Justice Isa facilitated the passage of the 26th Constitutional Amendment. However, the executive did not agree to extend the tenure of Isa due to several reasons.

After the 26th Constitutional Amendment, like-minded judges of former CJ Isa were selected for the constitutional bench by the Judicial Commission of Pakistan (JCP). Justice Aminuddin Khan was selected as head of the constitutional bench by non-judicial members of the JCP.

Now the beneficiaries of 26th Constitutional Amendment are on one side and those aggrieved by the amendment are on the other side.

The constitutional bench has delayed the adjudication of the 26th Constitutional Amendment case. Now the government is likely to be successful in appointing eight more like-minded judges to the apex court through the JCP.

It has already succeeded to appoint judges of its choice in the Islamabad High Court and the Sindh High Court.

Lahore High Court former judge Shahid Jamil Khan said proceedings in three cases at the Supreme Court have aggravated the judicial chaos.

"The bench led by Justice Syed Mansoor Ali Shah has discharged the additional registrar from contempt proceedings, but has referred the matter for constitution of Full Court, to the Chief Justice of Pakistan, observing that a judicial order has been ignored by the members of two SC committees.

"In my opinion, the question regarding jurisdiction of the regular and constitutional bench should have been referred to the full court rather than the contempt case."

He said two members of the appellate bench, constituted against the show cause notice issued to the additional registrar have already reacted to the division bench's order.

"The case has been disposed of through a split decision. Two judges of the bench have allowed the application for withdrawal of appeal whereas four judges have disposed of the contempt petition with some observations to be recorded later."

The former LHC judge stated that the observations shall surely escalate the controversy and further polarize an already divided Supreme Court.

"In addition, the cases in which the question of jurisdiction was raised before a regular bench have been listed before the constitutional bench, in presence of the judicial order by the regular bench and particularly in presence of the direction in the judgment delivered today that case be fixed before the same bench in February.

"The constitutional bench shall hear the case tomorrow and observations or any order in the proceedings is expected to broaden the controversy.

"The only solution consistently being suggested by the lawyers appearing before all benches is that a full court be constituted for an authoritative institutional view by the Supreme Court.

"But to the utter surprise of everyone, the JCP is convened to appoint eight more judges in the Supreme Court.

"This will be taken as an attempt to outnumber judges who might opine in extension of jurisdiction to Regular Benches matters involving constitutional interpretation."

He said the constitutional bench hearing petitions against 26th Constitutional Amendment was skeptical in recording the grounds challenging their jurisdiction being creation of the impugned amendments in the Constitution.

Khan said it appeared that both—haves and have not—are fighting for judicial review powers against the legislative action, ignoring that they all are judges collectively forming the Supreme Court along with chief justice under Article 176.

He said the members belonging to the executive side and dominating the JCP would be replaced with a change of regime.

Khan said the divide sowed by the 26th Constitutional Amendment through Article 191A, shall continue, demolishing the separation of power and independence of judiciary as fundamental salient features of the Constitution.

Abdul Moiz Jaferii Advocate said a notice of contempt was appealed against before a supposedly constitutional bench.

Right at the start, the appellant's lawyer said he was no longer aggrieved as the contempt charge had been dropped against the appellant by the bench which started it.

"What followed cannot be considered judicial proceedings because there was nothing left to adjudicate. It would have been better termed a press conference if it had been live-streamed".

Jaferii said all the pretense has been dispensed with. "But the show must go on, with the lead actors once again pretending that there is nothing to see here."

Rida Hosain Advocate said in October last year, Justices Syed Mansoor Ali Shah and Munib Akhtar directed that the 26th amendment challenges be listed for hearing before a full court.

"This order of the committee was defied. Now, when a regular bench led by Justice Shah was examining the ouster of jurisdiction under the 26th amendment, the case was unlawfully unwithdrawn from him.

"First an administrative order of the committee was defied, and now a judicial order has been violated.

"The 26th amendment is a clear assault on judicial independence, and it is regrettable that the judiciary has not been able to unite.

"The failure of the judges to unite has allowed the executive to encroach on their domain, and has eroded the credibility of the institution.

"Ultimately, the 26th Constitutional Amendment has achieved what it was designed to do. Constitutional cases of public importance are heard by a government-approved constitutional bench. Meanwhile, judges on the regular bench struggle to preserve their jurisdiction," she added.