Edited in Prisma app with Daryl Feril

Justice under siege: The year of Umar Ata Bandial

In a sea of state failure, Justice Bandial stood for the right thing, and the difficult thing — when his moment came, as it does for everyone, he refused to plead necessity.
Published September 16, 2023

In his masterpiece, The Decline and Fall of the Roman Empire, Gibbon wrote: “The books of jurisprudence were interesting to few, and entertaining to none: their value was connected with present use, and they sunk forever as soon that use was superseded by … fashion, superior merit, or public authority.”

So it was that another land, built on its fair share of dead empires, witnessed the same — when the books of law couldn’t be put to use, it was thought best to cast them aside.

Up against such decline was Pakistan’s 28th chief justice, Umar Ata Bandial, late of the Lahore bar, who oversaw the most difficult time since any judge after Iftikhar Chaudhry.

And while the post-2008 order was already unravelling, few would have predicted what was to come — the chief justice would be obstructed or opposed by the Pakistan Tehreek-i-Insaf (PTI) — before it was torpedoed from power — the Pakistan Democratic Movement (PDM), the establishment, the bureaucracy, the press, and a divided bench.

For the most part though, this was a decent man in an indecent time — each ‘good to see you’ was greeted with howls of anger; serving ministers would go purple with incitement; and calls to resign (read: calls by the shadowlands to clear the field) were a constant.

But this was also the wrong kind of recipient — whereas far lesser acts of contempt had driven Iftikhar to rage and Saqib to attack, the Bandial court stayed silent — no notices, no sackings, no ritual humiliations of serial offenders. In times of siege, it knew to conserve its energies and eke out wins wherever it could.

All said, he played an impossible hand with skill and patience.

‘The majority will’

No sooner had CJP Bandial taken oath that the country was in crisis. As the vote of no-confidence against the PTI sarkar gained momentum, this writer said that while such a vote was legal, legalese had aided undemocratic intrigues in the past, and that it was best that elected governments serve out their full terms.

CJP Bandial at the Supreme Court. Source: Haseeb Bhatti/<em>Dawn</em>
CJP Bandial at the Supreme Court. Source: Haseeb Bhatti/Dawn

But none of that was to be — instead, the establishment loudly declared ‘neutrality’, the opposition went charging at whatever prospect the country had of a third clean transition, and the PTI’s deputy speaker, Qasim Suri, botched the finale — the vote of no-confidence against prime minister Imran Khan was thrown out, and the National Assembly dissolved moments later by the President.

Two things, it seems, can be true at the same time — that Mr Suri’s rejection of the vote of no-confidence was desperate, unlawful, and violative of the Constitution; and that the VoNC was yet another sordid chapter in Pakistan’s history of pre-engineered removals.

In keeping with that history, the most predictable outcome of the Supreme Court’s suo motu would have been some watery middle ground — out of 10 premature dissolutions, the court had restored the assembly just once — in Nawaz Sharif’s case in 1993.

And seeing as the legal tests the judges applied would yo-yo back and forth (though never so much as to have benefited any of the country’s three Sindhi prime ministers), it was hard to suss out any clear precedent. The past tells us the rest of the story:

Regardless, this would prove Parliament’s second-ever restoration — in Peoples Party vs Federation, Justice Bandial held that the state’s powers were to be “exercised by a government that is formed, run, and maintained by the support of the majority of the directly elected representatives of the people in the National Assembly…”

Even here, however, the PTI’s legal eagles suggested a Junejo-style verdict — to accept that the dissolution was wrong, but still not restore the assembly.

The bench was unmoved, and it did well to cite the second thoughts of the Junejo decision’s author, Nasim Hasan Shah. (“On hindsight, I now think that after having found the action of dissolution of the National Assembly was not sustainable in law, the Court…ought to have restored the National Assembly.”)

Besides, held Justice Bandial, “If today we maintain the dissolution of [the] National Assembly, which has been brought about by the illegal actions of the Deputy Speaker, prime minister, and President, we will effectively be disobeying the Constitution.”

Thus both, the speaker’s ruling and the president’s dissolution were undone, and Parliament was restored — a good day for the country’s supreme court, and for the sanctity of Parliament. For the first time in almost three decades, the SC not only held dissolution illegal, it also restored the assembly.

It was the unpopular thing and the right thing.

But the verdict also marked the start of the Bandial court’s collision with a fresh executive — the new ‘unity’ regime would soon attack the same court by the grace of which it now found itself in power. And its methods would grow more and more aggressive.

Lotas vs objectors

It was between its two landmark verdicts — the Suri decision and the 90-days case — that the Bandial Court authored its most contentious (and extraordinary) judgment.

Around the same time as when the PTI government came under threat from the vote of no-confidence, President Alvi sent a reference to the SC seeking advice: whether a Member of the National Assembly (MNA) voting against his party’s direction could be disqualified for life, and whether such a vote, tainted as it was, could even be counted in the first place.

Neither conclusion is written in the law: Article 63A says that members who vote against their party in four scenarios — election of the prime minister or chief minister, votes of confidence and no-confidence, money bills, and constitutional amendments — may be de-seated if the party head so chooses, via the election commission.

In the entire life of 63A, not a single one of our lawmakers’ debates — from Nawaz Sharif’s partisans in 1997 to Raza Rabbani’s in 2010 — say that the vote shouldn’t be counted. Nor do any of the law’s previous versions — not in 1962, and not in 1985.

The closest thing is a long-repealed law on votes of no-confidence from the Bhutto years, which said that a member’s vote would be discarded if the majority of his party hadn’t also voted against the prime minister.

Not only was the law scrapped — finding no mention in today’s Constitution — it was bashed by the members at the time. “The limitations … are so extensive, so unheard-of,” said Bhutto’s ex-law minister, Mahmud Ali Kasuri, on the floor of the House on March 5, 1973, “that once a person has become the prime minister, it will not be possible to remove him”.

But the SC disagreed — by a 3-2 majority, it ruled that dissident votes didn’t count. The court linked 63A with Article 17 — freedom of association, as well as the rights of political parties.

Yet those parties are made up of members themselves, all of whom should, by right, be able to dissent. Even otherwise, cancelling out such votes would mean rendering much of Article 63A redundant, acting as a steroid shot to the party head, upending the backbencher for good, making the only parliamentary means of removing a prime minister near-impossible, and skipping over the fact that the assembly thrice debated the subject and never once sought to discard the vote.

For many of these points, though, the verdict isn’t low on ammunition. In spite of this author’s disagreements above, the judgment, authored by Justice Munib Akhtar, was inarguably sharp, combative, and far removed from the often staid, workmanlike opinions of Pakistan’s SC.

In brief, defections were “a cancer afflicting the body politic”, triggering palace coups, and it was all too easy to “throw up one’s hands and balk at trying to find a solution for a problem … in real life problems don’t just disappear simply because a solution is not conveniently at hand.”

Hence, also, the need to take a broad view of the Constitution: “A limited vision leads to a stunted tree, hardly more than a shrub. A soaring vision leads to one mighty and towering, a veritable giant.”

As for the rights of individual members, “…A political party was more — much more — than merely the sum of its parts … it transcended the members, and thus it was the political party itself that was entitled to, and held, the fundamental rights enshrined in Article 17(2).”

But while the calls of one’s conscience were best served by resigning — rather than betraying one’s party — the judgment’s most damning indictment came near the end: to the argument that the conscientious objector, as opposed to the venal lota, would lose his voice, Justice Akhtar held, “Although the hearings stretched over several dates, no example — not one — was ever given of an actual, real-life conscientious objector who took the path of defection and de-seating under Article 63A. The Article has been part of the Constitution now for a quarter of a century … Not a single conscientious objector.”

In fact, the closest example was a particular senator, one who cast a vote for a constitutional amendment he objected to. “On a query from the Court, the Senator (with a candour that must be appreciated) stated that in the end he did not have the courage of his convictions and cast his vote as the party required.”

Concludes Justice Akhtar, “Not one example.”

‘90 days, but–’

With the 63-A verdict, the unity regime stepped up its campaign against the Bandial court, especially when the Punjab Assembly fell to the PTI — by reading into the Constitution, the court was alleged to have paved the way for Imran’s resurgence.

Whatever the many criticisms of the judgment, this wasn’t one of them — with or without the decision, the PTI lotas were all set to be de-seated from the assembly anyway — the decisive factor in re-tilting the assembly was when the PTI candidates swept the resulting by-polls.

Their tenure would be cut short: as the new year began, Imran had his chief ministers advise dissolving both the Punjab and Khyber Pakhtunkhwa assemblies — with elections in both provinces in 90 days.

The inherent value of such a deadline went beyond Imran, or, for that matter, any other party leader. Article 224 of the Constitution is clear: “When the National Assembly or a Provincial Assembly is dissolved, a general election to the Assembly shall be held within a period of 90 days after the dissolution.”

It’s a law that goes to the heart of democracy — of being able to vote for one’s representatives; of setting red lines when so many have been violated in the past; of ensuring — as Justice Bandial held in Peoples Party — that the state’s powers are exercised by an elected majority. Above all, there’s more than enough bitter experience to go by — postponing the democratic process here has only ever ended in grief.

Yet what followed was a crisis that no serious country would be allowed to humour, as a series of increasingly deranged reasons was advanced by the unity regime to avoid going to the polls.

‘Lack of finances’ was one (when there was more than enough money); the ‘security situation’ another (when elections were held in far worse circumstances in 2008 and 2013). Then there was ‘level playing field’ (an expression denied any frame of reference) and ‘holding elections at the same time’ (which has no legal basis, especially in a federation).

Bizarrely enough, more than a few in the press, as well as the law, chimed in. While sophisticated enough not to say the 90-day deadline should be set on fire, a brand-new genre of whataboutery ensued — the ‘yes to 90 days, but’ category.

First came a single-line disclaimer on the importance of 90 days, and then acres of paper on procedural bits and baubles — the need for High Court division benches to weigh in first, the importance of formation of benches, the regulation of the suo motu power, the need for a census, fresh delimitation within delimitation — on and on it went, until the very idea of 90 days seemed a distant dream.

For similar reasons, when the SC did take suo motu, it stepped into a void — the ECP was looking the other way, the governors had refused to announce the date despite their constitutional role, and all refused to obey the courageous direction of the Lahore High Court’s Justice Jawad Hassan mandating 90 days.

The easiest thing in the world would have been for the chief justice to take up any one of the ridiculous excuses the state was offering, and postpone the polls. All would be forgiven, some new doctrine could take hold, and the 90-day deadline defused for good.

Instead, the Bandial court did the right thing again — despite extraordinary pressure, it affirmed 90 days, and ordered the government to hold polls twice over.

Here too, the response was back to front — when a nine-member bench hearing the case requested the chief justice to reconstitute the bench on February 27 — resulting in a five-member bench that ended in a 3:2 majority — the unity regime was quick to say that two dissident judges were still a part of the new bench (while forgetting to include the remainder two judges from the original). They then pretended that no such direction to hold the polls existed, in light of “the 4:3 verdict”.

This would do much to sabotage democracy. “The consequence,” the court held several months later, “is that two out of four provinces continue to be governed by unelected caretaker governments, without any end in sight.”

It bears mention that the judiciary has neither sword nor purse; it relies less on the beauty of its judgments than the faith in its people. As US President Andrew Jackson was rumoured to have said about his own chief justice, “John Marshall has made his decision; now let him enforce it!”

Similar attitudes were to be found at home — after all, the state’s response to the SC pushing for polls wasn’t just limited to novel bench numbers. There followed threats by ministers in press conferences, relentless social media campaigns, and, in one particularly shameful episode — while Bench No. 1 was hearing the ECP’s review against the Punjab elections verdict — Maulana Fazlur Rehman’s men storming the streets outside the court. How any of this could happen while Section 144 was still in force was never quite addressed.

JUI-F protesters outside the Supreme Court. — Source: <em>Dawn</em>
JUI-F protesters outside the Supreme Court. — Source: Dawn

“The government machinery,” held the court, “facilitated the entry of the horde of protesters and remained a silent spectator to their slander, the discernible purpose of which was to pressurise the Court and its judges into giving a favourable decision or no decision at all. The power show assisted by the federal government was a direct attack on the independence of the Judiciary.”

But when it came to 90 days, neither the federal government, nor the election commission, nor the parliamentary parties, nor the bureaucracy, nor the deep state, moved a muscle.

We have since reached a tipping point — the SC was alone, and alone it remains.

Reopening corruption cases

In its final act, the Bandial court thought to set aside the crown jewel of the PDM’s legislative agenda — a bonanza of get-out-of-jail cards — one that saw nearly 600 corruption cases dumped in the sea.

When it comes to the NAB amendments, critics point to parliamentary prerogative (the kind that lets lawmakers close corruption cases against themselves). If so, it’s a far more palatable spin than their last cover story — that corruption fuels development.

All things considered, it would be correct to say that the NAB was born as a general’s swagger stick — to come down on political opponents, cajole potential allies, and, in more than a handful of cases, destroy the lives of innocent men and women.

Yet it would also be correct to say that the cure to any harsh anti-corruption law isn’t to make one’s own bank robberies impossible to punish. It was the unity regime at its basest, as they now doubtless look forward to the review petition.

Curtain call

Some of this story is unfinished — of the cases pending before the chief justice, the fate of the Practice and Procedure Act (a bill with the sole purpose of declawing the chief justice’s suo motu powers), the Arshad Sharif murder case, and military trials of civilians, will be taken up by his successor, Justice Qazi Faez Isa, or marked to another.

CJP Bandial with CJP-designate, Qazi Faez Isa. — Source: Supreme Court website
CJP Bandial with CJP-designate, Qazi Faez Isa. — Source: Supreme Court website

During a farewell dinner, the outgoing chief justice said he was the last of the dinosaurs — that batch of judges that, in the bitter winter of 2007, turned down a dictator’s oath.

In one way, he was wrong — the first sign of a dinosaur is thinking it isn’t one (and a glance at any high office in this country would reveal a fair few born to live forever). In another way, he was right — with the chief justice’s exit, a curtain falls on the lawyers’ movement — the sort that, for the briefest of moments, spoke of a place a little more just.

Some traces linger — there’s Aitzaz Ahsan, a PPP diehard now accused of PTI fever (a treasonable offence) — when his real sin might have been fighting for a place the original Peoples Party dreamed of, and that the Zardari crew buried a long time ago. Meanwhile, his country remains as contested as ever.

Perhaps, had Justice Bandial decided some cases a bit differently, he would have received sunnier coverage. Reads one farewell tribute to a predecessor, Justice Munir, “The name which he carried … [was] the enlightened one … his devotion to duty, his diligence in application, and the intensity of the interest with which he seized upon every question that was raised before him were the principal factors which brought him the unique success he enjoyed.”

Munir’s success was indeed unique — after an innings in which he stripped the assembly of its sovereignty and then waved in martial law, he took to chamber practice (“Of course I made money,” he writes in his memoirs, “heaps of it.”) His last job, as Ayub’s vizier, wasn’t too different from when he was chief justice — as a dictator’s private lawyer. In his golden years, he took comfort in tinpot tyrannies citing his decisions, from Uganda to Rhodesia.

Chief Justice Bandial is set for a very different retirement; no tyrannies will cite his works. Financially honest to the end, he had no interest in money — heaps or otherwise. In a sea of state failure, he stood for the right thing, and the difficult thing — when his moment came, as it does for everyone, he refused to plead necessity.

That is an honourable place to hold.