• Striking similarities emerge between govt-judiciary confrontation of 1997, present day
• Political polarisation, PTI backing for CJP seen as major differences
IN recent weeks and months, many have drawn parallels between the divisions currently plaguing the Supreme Court and the crisis that emerged in 1997, when the apex court led by Justice Sajjad Ali Shah suffered a ‘bifurcation’ following a confrontation with the Nawaz Sharif government.
But while the similarities between the two occurrences are striking, observers and legal experts warn that the current state of political polarisation in the country could aggravate this crisis to hitherto unprecedented proportions if sagacity is not demonstrated by those at the helm of key national institutions.
In 1997, then-chief justice Sajjad Ali Shah had taken on the executive when he took suo motu notice of the handcuffing of some Water and Sanitation Authority (Wasa) officials in Faisalabad.
Former Supreme Court Bar Association president Hamid Khan notes in his book Constitutional and Political History of Pakistan that differences deepened with the enforcement of the anti-terrorism law, which Justice Shah strongly opposed.
Justice Shah then peeved parliament by suspending the 13th Amendment without a sufficient hearing and restored the president’s power to dissolve assembly.
He was already on the PPP’s ‘bad side’ for endorsing the dismissal of Benazir Bhutto’s government the previous year, even though she had bypassed two senior judges to install him as the country’s top judge.
Today, nearly a quarter of a century later, members of the legal community still believe that it is the lack of internal democracy, consultation and throwing the principle of seniority to the wind in judicial appointments which are the key reasons behind the current cracks in the Supreme Court.
Resentment festered amongst the judges, both then and now due to a departure from the tradition of consulting senior judges on all important matters. Indeed, being kept out of benches formed to hear important constitutional and political cases is the root of the dispute between senior puisine judge Justice Qazi Faez Isa and the embattled chief justice.
Former SCBA president and one of the key figures of the 2007 lawyers’ movement, Muneer A Malik told Dawn that while dissent had existed within the ranks of the judges for quite some time, it is the current state of political polarisation that seems to have amplified the issue.
With a three-judge bench headed by Chief Justice Bandial set to announce its verdict on the date of elections in Punjab on Tuesday (today), Mr Malik says the implementation of that order could remain an issue as the government does not seem willing to abide by the orders of the present bench.
One major similarity, he said, was that the Sharif family and litigation involving them were at the centre of both controversies.
In his view, the apex court could take some kind of action against the prime minister in case he refuses to comply with the court order — along the lines of what Yousuf Raza Gilani experienced when he was held in contempt for failing to comply with an SC order to write to Swiss authorities regarding an investigation into then-president Asif Ali Zardari’s assets.
Mr Malik recommended that the chief justice should hold full-court meetings to restore harmony amongst the judges and save the institution from internal divisions, calling on the CJP to deal with the root causes of these differences more forcefully.
Expressing differences through judgements and annulling judicial orders through administrative circulars is yet another similarity between the present day and the events of 1997.
Now, the removal of the SC registrar in the wake of Justice Isa’s latest letter, will make things even more tense and complicated.
Former Sindh High Court Bar Association president Salahuddin Ahmed told Dawn that CJP Bandial could feel offended by the abrupt repatriation of the registrar and take notice of the same. He sees no illegality in Justice Isa’s letter, however, he is also of the opinion that the current conflict within the judiciary is fast heading towards a 1997-like situation.
Mr Ahmed believes the factors for the differences amongst the judges are within and not outside the court; i.e. non-transparency in constitution of the benches, excessive use of suo motu powers and unregulated judicial appointments and elevation.
But on the other hand, Islamabad-based advocate Umar Gillani believes that since the days of ex-chief justice Saqib Nisar, successive CJPs have, with the help of a small coterie of like-minded judges, been collaborating with extra-constitutional forces.
A sizable number of justices have now openly revolted against this arrangement due to the “sacrifices” made by Justice Qazi Faez Isa, he said. In his view, the dissenters are not beholden to any political interest; instead they seem to be fighting to restore the judiciary’s neutrality in the power game.
Mr Gillani believes this gives the present divisions among the judges a totally different context from what happened in 1997, where political pressure was exercised to split the bench.
Noting the similarities between the two eras, Advocate Usama Khawar believes that this time around, the trial of a senior brother judge on flimsy grounds had added fuel to the fire of division that burns among SC judges.
In his opinion, Justice Shah had no political support, whereas today a popular political party is throwing its weight behind Chief Justice Bandial due to their rivalry with the PDM government. Mr Khawar suggested that the incumbent CJP isn’t as isolated as Justice Shah may have been, as he enjoys the support of at least two future chief justices.
But while the cracks have been laid bare, they have not yet divided the top court into two parallel groups like 1997, when two separate cause lists were issued — one by Justice Shah for a five-judge bench and the other by Justice Saeeduz Zaman Siddiqui of a ten-judge bench. Both groups also issued judicial and administrative orders against each other’s decisions.
Mr Khawar notes that in order to defuse the powder keg, parliament should not be attempting to subvert the law, and the judiciary should respect the wisdom of the legislature.
Published in Dawn, April 4th, 2023