Letter exposes deep fissures in apex court

ISLAMABAD:

Four Supreme Court judges have raised serious doubts on a delay in listing of petitions challenging the 26th Constitutional Amendment as well as induction of new judges to the apex court before deciding the petition in a letter addressed to Chief Justice of Pakistan Yahya Afridi.

The letter is penned by Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Ayesha Malik and Justice Athar Minallah. Justice Ayesha is herself the member of the Constitutional Bench, which is supposed to hear the constitutional amendment case.

One lawyer believes that the endorsement of this letter by Justice Athar Minallah shows that the downfall of CJP Afridi has begun. One section of lawyers is already pessimistic about the outcome of the case, stating that little hope can be pinned on the CB judges who are the beneficiaries of the 26th Amendment.

Some lawyers believe that the existing judicial crisis is a result of a clash between the judges who are the beneficiary of the 26th Constitutional Amendment and those who are aggrieved by it.

Four judges in their letter stated that delay in the adjudication of 26th Constitutional Amendment case would further imperil and erode the public trust and confidence in the judiciary.

"At the present time public trust in the judiciary hinges crucially on how the petitions impugning the Amendment are dealt with. The induction of new Judges, at this stage, who are clearly beneficiaries of the Amendment, will weigh heavily on the (faltering) public trust enjoyed by the institution today and unnecessarily make matters more complicated," it said.

The letter is addressed to Chief Justice Yahya Afridi, who ignored an SC committee's majority decision and did not convene a full court to take up petitions against 26th Constitutional Amendment.

If the 26th Constitutional Amendment case was listed for hearing before the full court on the first of November, the situation might have been different. There might be a chance that the full court could have referred the matter to the Constitutional Bench.

Now there is a perception that Justice Afridi who became the chief justice of Pakistan in view of the 26th amendment and the Constitutional Bench which was created under the amendment are delaying the adjudication of the matter.

After this letter, the judges of the Constitutional Bench and CJ Afridi are under pressure to prove that the 26th Constitutional Amendment case is not being delayed on account of their interests.

Meanwhile, taking advantage of the delay in adjudication of the petitions against 26th amendment, the executive authorities have been successful in inducting more than three dozen judges in high courts. There is also a perception that court packing of high courts has already taken place.

Former Lahore High Court judge Shahid Jamil Khan said the letter by four senior SC judges is a wakeup call for taking action to restore public confidence in the judicial system and judiciary.

"Despite witnessing orders marred by emotions in the recent past, the reasons for requesting postponement of the Judicial Commission of Pakistan's (JCP) meeting of February 10 are cogent and convincing.

"Since the demand for a full court of the Supreme Court to hear the challenge to 26th Amendment is sub judice, induction of 8 new judges to the apex court would result in a chaotic situation at the SC."

The former judge said one aspect that the judges sitting on the Constitutional Bench need to realize is that they, at first instance, are judges of the Supreme Court of Pakistan and their opinion sitting as members of a full court shall have much more weightage than any decision in the Constitutional Bench.

"In case of a delayed decision to refer the case to a full court and that too after induction of eight more judges by a the JCP, which again is impugned in petitions, the public trust would be scanty, rather the judiciary would be a laughingstock for ages to come," he warned.

Khan said concerns about the seniority bestowed upon the newly transferred judges in the Islamabad High Court (IHC) are convincing.

"This means that a judge 15th on the seniority list of the Lahore High Court would be considered the second senior most judge at the IHC, who might be considered for further elevation to Supreme Court.

"This craftsmanship, if given way, would lead to the consequences unimaginable. The irony is that this controversial situation is taking place with the blessing of the four chief justices of the high courts and the chief justice of Pakistan. The executive's role, if any, is gloved.

"I wish and pray that this letter may jolt the judicial elite to realize that the 10th February's meeting of JCP, if held, would leave a scar visible for decades to come," he added.