When night turns into day

Published February 14, 2022
The writer is a lawyer.
The writer is a lawyer.

THERE is much bemusement in the lawyers’ community. With the review petitions in the Justice Isa matter having been allowed, many had thought that the judiciary would focus on bridging any internal divisions and concentrating on the work at hand. However, with the release of the minority opinion and the additional note, this does not appear to be the case.

The minority opinion and additional note are over 100 pages. Upon reading it, one can’t help but feel somewhat uncomfortable. The opinion lacks the aloofness or impersonal characteristics that we had become accustomed to while reading judgements or the court’s opinions. Judges tend to be respectful of the majority or ‘plurality’ decision, keeping in mind that a collective esteem for the judicial set-up is paramount for maintaining and augmenting the judiciary’s legitimacy. There is always an underlying regard for your brother judges accompanied by a painstaking effort to formulate any disagreements with the utmost respect. Minority opinions, although possibly aggressive, are not supposed to come across as personal.

And that is where I see a problem. It is not about the judges disagreeing with the majority or ‘plurality’, but the manner in which such disagreement presents itself. Whether correct or not, the minority opinion and additional note are being viewed by many as a personal rebuke being delivered to the decision of the majority or plurality.

Even that is perhaps acceptable. But what is tricky is the fact that the minority opinion discusses the alleged merits of Justice Isa’s case and the contents of the FBR report, despite the fact that the latter was declared by the majority opinion as having no legal effect. Although the matter was dealt with in relation to the maintainability of the constitutional petition filed by Justice Isa, it nevertheless raises questions on two fronts.

It is not about disagreeing with the majority or ‘plurality’, but the manner in which such disagreement presents itself.

Firstly, the judges had consistently maintained throughout the proceedings that it was not the Supreme Court’s domain to delve into the merits of the case itself, whereas the minority opinion seems to be doing just that.

Secondly, the FBR report had been thrown out, yet the judges supporting the minority opinion chose to deliberate on its contents, thereby making it a part of the judicial record and opening up the way for the authorities, whosoever they may be, to potentially use it for future proceedings. To quite a few, it may read as disregard for what the other judges had already held.

The additional note goes on to discuss how the stated majority is in fact not a majority at all. Interestingly, the minority opinion had already refrained from looking into certain facts relied upon by Justice Isa by stating that they had arisen subsequent to the issuance of the order being reviewed, and hence, could not be taken into account. However, some of the facts relied upon to challenge the precedential value of the majority opinion, including the contents of the FBR report itself, also came about after the issuance of the order being reviewed, and in fact, in some cases, even after the filing of the review petitions.

In essence, if certain arguments made by Justice Isa should not be considered because they occurred after the issuance of the order being reviewed, would the same not hold true for the question of whether the majority opinion had precedential value, whether Justice Manzoor Ahmed Malik could sign the majority judgement despite having retired, and whether various authorities could still take action against Justice Isa in light of the opinions rendered? Were such questions even relevant in deciding the questions in the review petitions before the court? Would it not have been premature to discuss all this in a minority opinion and additional note, thereby potentially devaluing the majority decision?

After all, such questions could have been answered whenever an appropriate proceeding was taking place in court, for example, if and when any petition was filed challenging an action of the FBR or any other organisation in relying on information coincidently disclosed in the minority opinion.

In the current circumstances, with four judges having already given their opinion on the precedential value of the majority opinion, an issue which was not before it to begin with, can such judges legitimately be a part of any future bench looking into these aspects? Has this not created greater complexities?

There is another aspect as well. The references in the minority opinion to another learned judge interrupting proceedings, reproducing transcripts of submissions and conversations during court proceedings, and attempting to show contradictions in their stances and intent, did not appear to be necessary. In fact, whilst consistently holding that the questions before the court were of a very narrow nature, the minority opinion in and of itself delves into questions which do not appear to be relevant in deciding the review petitions themselves. Plainly speaking, it talks about the day when asked about the night. In doing so, whether intended or not, the judges may have raised more questions than they have answered.

All in all, the overall situation seems to be concerning, with the days to come warning of a lot more of what we need a lot less of, that is, an accountability process which is perceived as anything but. Needless to say, if one of those forums for accountability, more specifically the Supreme Judicial Council, does act upon the information available, there is little doubt that all that will be achieved is controversy. And controversy, as previous CJPs may well testify to, is no friend of any top judge, especially one who not only heads the Supreme Judicial Council but has also authored the minority opinion.

The writer is a lawyer.

basil.nabi@gmail.com

Twitter: @basilnabi

Published in Dawn, February 14th, 2022

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