ISLAMABAD: After chief justice-in-waiting Qazi Faez Isa refused to become part of a nine-member bench hearing pleas against trials of civilians in military courts on Thursday, a polarising debate started over whether the withdrawal of two judges from the bench would hurt the apex court.

As lawyers on social media criticised Justice Isa for his failure to put up a united front, some came forward to his defence and blamed the incumbent chief justice for creating a division in the top court.

One of the defenders of Justice Isa said the formation of benches on the “personal preferences” of the CJs was the root cause of this division. “Problem is when CJs keep forming benches on personal preferences over complaints by judges & litigants — gets hard to bring court together when a collective pushback needed,” Salahuddin Ahmed, a Karachi-based lawyer and former Sindh High Court Bar president, wrote on Twitter.

“Also strange Review Act heard/reserved before SC Procedure Act even though latter passed & challenged earlier,” he said, in reference to a law regulating court affairs.

Critics flay ‘pettiness’, supporters fault CJP for not ‘correcting course’

Maryam S. Khan, a constitutional history and judicial politics scholar, also defended Justice Isa and said: “For those focusing their misguided missiles on Isa, we can turn this another way: a fine opportunity for CJ [Bandial] to correct course, acknowledge the law, re-constitute the bench according to the latter, and repair the damage he has done to both his office and the judicial institution.”

‘Hard to agree with Isa’

Hassan A. Niazi, a LUMS faculty member, said it was “hard to agree” with Justice Isa. “The trial of civilians by military courts should have been the issue that united the Supreme Court. It is not just a violation of the Constitution but an attack on the institutional powers of the judiciary,” the lawyer noted.

Ali Uzair Bhandari, who was briefly whisked away by ‘unknown men’, termed the drama at the top court a result of “petty politics and inflated egos”.

“Today lawyers arrived at the Supreme Court risking their lives and in the face of harassment, abuse and abductions. They came expecting our honourable judges to put aside their petty politics and inflated egos. What they saw instead was pettiness one expects of kindergarteners,” the Supreme Court lawyer wrote on his Twitter account.

Barrister Reza Ali, calling out Justice Isa for his decision to exit the bench, tweeted: “Rare opportunity lost by Faez Isa J to sit on a bench and resolve opaque jurisprudence on civilians subject to military trials. Granted that he has a legitimate grievance against the current CJP, but in certain defining moments, principles must and should override the self.”

Published in Dawn, June 23rd, 2023