“SOME cause happiness wherever they go, others whenever they go. — Oscar Wilde”
WE must first speak of the good. CJ Bandial tried to uphold the Constitution when the night was the darkest. It is said he was offered a blank cheque to sign for himself if only he would allow the PDM and its neutral minders free rein by delaying provincial assembly elections. It is rumoured the dentist’s chair was offered to him as a future reward for compliance. Yet he refused. He failed — partly, because it had gotten too dark, partly, because my lord had himself helped put out the lights.
On important issues, CJ Bandial behaved similarly to his predecessor Gulzar, who would sidestep the hard cases by brushing them under the registrar’s carpet. CJ Bandial continued this rule by registry, ensuring the really contentious stuff remained buried. When the DHA in Quetta was declared illegal by the Balochistan High Court, he suspended the order and lost the file. When Waqar Seth declared all Army Act-related trials of alleged terrorists illegal because they had not been afforded a fair trial or due process, the Bandial court suspended the judgment and the matter disappeared.
CJ Bandial proved that whether a chief is from a Gulistan school like Gulzar or Columbia and Cambridge like himself, the only difference between their submissiveness to predators is the quality of the English in which it is penned.
We have had past chiefs who shrank before the establishment. There would have been no small shame in joining their ranks, but it would at least have been with precedent. There have been chiefs who played politics. Again, deplorable but with precedent. But here was someone who, whilst being accused of the first two, was also unwilling to face his own brethren — a preacher of democratic propriety who appeared too afraid of the votes within his own court. Many observed that the general rule of adjudication in political matters for him was that justice is relative to whether or not it favoured Imran Khan.
Here was someone who was also unwilling to face his own brethren.
Being dishonest was a mandatory life disqualification from politics for Nawaz Sharif; it became a draconian measure for Faisal Vawda. When Nawaz needed removing, CJ Bandial felt that the political party head gives voting directions to parliamentary members. When Imran needed PML-Q votes for chief minister Elahi despite party head Shujaat Husain ordering otherwise, he voted that the parliamentary leader is actually boss. The CJ excused his flip-flopping by firstly saying there was no flip-flopping and then declaring that if a judge does some flipping unconsciously he can then flop consciously thereafter.
Most of his contentious decisions began with religious quotes. Detractors would argue that even the devil can quote scripture for his cause. His dissent against the decision to quash the reference against Justice Isa stood upon the sacred trust in which judges hold office, and included several details of accounts and amounts that had not surfaced nor been argued earlier.
But when it came to Justice Mazahir Naqvi being accused of irregular assets by way of a similar reference, he decided that no investigation was required because he didn’t believe the allegations.
The CJ now lamented that Justice Isa was harangued, despite there being nothing of substance in the charges against him. Perhaps it was an indirect apology. Perhaps my lord had acted as the leading horseman of accountability in the charge unconsciously.
Religiosity sometimes gave way to practicality. When Justice Minallah declared the allotments of plots to judicial officers illegal because this undeserved largesse compromised integrity and independence, CJ Bandial suspended the judgment.
My lord was very territorial, and scuppered parliamentary attempts to structure the Supreme Court’s powers; he was willing to protect his constituency, but not so much his constituents.
Riaz Hanif Rahi was among the counsels who had challenged the review of judgements bill which the SC later struck down. When the case was listed, Rahi turned up at the podium and stated he wanted to withdraw his petition because he had just returned after being abducted for a week. He asked to read out his experience to the court.
This made CJ Bandial uncomfortable, and he interrupted saying this was Rahi’s personal issue. He then told him we were ‘going through extraordinary times’ and that ‘our economic situation was fragile’. He asked Rahi to ‘learn to deal with it rather than complaining’. Months earlier, while hearing 63-A-related petitions, news reports carried a rhetorical question the CJ asked: ‘Kya hum beghairat hein?’ (‘are we without self-respect’).
Great fast bowlers have hunted in pairs. Pakistan had Wasim and Waqar. Imran Khan had Sarfraz Nawaz. The captain later developed great pairings with several ISI heads. Imran’s greatest political mistake was perhaps thinking he had found another partner in CJ Bandial. Had Imran Khan not relied upon his belief in partnership and scuppered talks between his party and the PDM when the latter had proposed July elections, the political landscape would have been completely different today.
CJ Bandial then took a suo moto bite at the provincial election cherry by reconstituting the bench rather than seeking consensus. Had he compromised and agreed with Justice Mansoor Ali Shah who gave the Lahore High Court three days to decide the ECP appeal against the elections within the 90-days order; the CJ could have himself ordered such an election within the week. With the support of a near full court. For want of three days, constitutional order was lost.
The Bandial lesson: you can run with the hares and hunt with the hounds. But to do so, under the wig and gown you must yourself be a hound. There must be that killer instinct. You must be able to lead raids on hospitals, order a dam to be built, risk disqualifying a prime minister in contempt. A hare can only dare to go so far, before he panics and seeks the nearest hole to dive into.
Obeying today’s SC has become optional. In part, this is because under CJ Bandial, its actions were stripped of its moral authority. Good to see you (go), sir.
The writer is a lawyer.
X (formerly Twitter): @jaferii
Published in Dawn, September 16th, 2023