Analysis: A divided judiciary exacerbates national disharmony

Published May 29, 2023
A general view of the Supreme Court in Islamabad on April 4, 2022. — Reuters/File
A general view of the Supreme Court in Islamabad on April 4, 2022. — Reuters/File

ISLAMABAD: The recent observation by Chief Justice of Pakistan (CJP) Umar Ata Bandial about efforts to drive a wedge between jud­ges of the Supreme Court has given credence to rumours that the highest court of the country — the Supreme Court — was indeed divided.

Saturday’s proceedings of the government-appoi­nted three-man commission of inquiry on audio leaks further strengthened the belief when Justice Qazi Faez Isa regretted that a notice should have been given before staying its proceedings, especially when the commission had already made it clear that the inquiry body will not encroach upon the domain of the Supreme Judicial Council (SJC) — a constitutional body which probes allegations of misconduct against judges.

On May 26, a five-judge Supreme Court bench stayed the proceedings of the Justice Isa-led commission to probe the veracity of the alleged audio leaks. The commission was constituted by the federal government on May 19 under the Pakistan Commission of Inquiry Act 2017 without even consulting the CJP, a practice usually followed in the past.

Although in a recent hearing the CJP had rubbished the impression about division by stating that judges enjoy a cordial and warm relationship, the chairman of the executive committee of the Pakistan Bar Council (PBC) says he would take the assertion with a pinch of salt.

“If this is really so, why no full court meeting of all the judges has been called in the Supreme Court for the last two-and-a-half years,” wondered Hassan Pasha.

He said he had recently suggested to the CJP that if full court hearing was not possible, at least a full court meeting be convened.

The full court meeting is a meeting called by the CJP to take stock of different iss­ues, including administrat­ive measures. Usually held in the conference room ins­ide the premises of the apex court, the full court meeting provides an ideal opportunity for judges to point out issues or highlight problems being faced by them.

Such interaction helps improve bonding among judges.

This has become all the more important since both the CJP and Justice Isa were talking about upholding the Constitution, but the public has become confused, said Hassan Pasha.

Discord all around

The discord in the top judiciary coincides with a sharp cleavage between political parties, between different media houses as well as even among the common people, Mr Pasha observed.

“I have been in business for the last many years, but the kind of sharp divide I see now is unprecedented,” said a senior officer of the apex court.

Ever since the Supreme Court suspended the Supreme Court (Practice & Procedure) Bill, 2023, a bill aimed at clipping the powers of the Chief Justice of Pakistan (CJP) on April 13, Justice Faez Isa has been doing chamber work only and not hearing any case, the officer said.

Created after the June 19, 2020, majority order of the Supreme Court that requires verification by tax authorities of three offshore properties in the name of the wife and children of Justice Isa, the divide among judges has since sharpened and is more visible now, he added.

Hassan Pasha disagrees with the notion that the government was allegedly making efforts to divide judges. “The apex court already stands divided.”

The talk of division among judges is coming from inside, and not outside, the grand white marble building, he regretted.

Although some efforts were made recently to end disharmony among judges, which is evident from a dinner thrown by the CJP in their honour. Even some retired CJPs were invited to the dinner. But it was not attended by Justice Qazi Faez Isa and the retired judges.

Even the tea room is not visited by all judges these days.

Letters to SJC members

The absence of a full court meeting has encouraged judges to write letters to the Chief Justice of Pakistan, Mr Pasha regretted.

“Had such a meeting been called earlier; there would have been no need for writing such letters.”

Hassan Pasha was referring to an April 4 letter written by Justice Isa and Justice Sardar Tariq Masood to members of the Supreme Judicial Council, headed by the CJP, to consider complaints against a sitting Supreme Court judge. Both Justice Isa and Justice Masood are members of the SJC.

The letter highlighted the written complaints, including from the Pakistan Bar Council, alleging misconduct and financial impropriety by the respondent judge and that both the author judges were awaiting the time when the CJP convenes an SJC meeting on the issue.

The letter also highlighted the need to exonerate the respondent judge and fully restore his honour or else submit report in terms of the Constitution.

According to Hassan Pasha, the PBC will discuss the alarming situation in the judiciary and has already convened an emergent meeting of its executive committee on Wednesday (May 31) in view of the ongoing confrontation between Parliament and the superior judiciary.

The meeting will chalk out a course of action for easing tensions since the country cannot afford the standoff as the prestige of institutions is being severely affected.

Hafiz Ahsaan Ahmad Khokhar, a senior lawyer, emphasised that it was high time that the superior judiciary sits together at the earliest and resolve issues once and for all.

“This earn them respect in the eyes of the people, especially litigants, as they are the real stakeholders in the justice system,” according to Hafiz Khokhar.

“The reason behind the division among superior court judges is a lack of good communication on important administrative matters and the absence of regular meetings, for example the full court.”

The full court, Mr Khokhar added, was the best legal forum to decide administrative matters under the Supreme Court Rules of 1980, including fixation of public interest matters under Article 184(3) of the Constitution.

The apparent division, he regretted, has provided an opportunity to other quarters to criticise the Supreme Court, a practice not done in any part of the world, he regretted.

Published in Dawn, May 29th, 2023

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