• President to administer oath to 29th CJP as SC hopes for ‘unity’ under new top judge
• Military courts, general elections, practice and procedure law among major challenges facing new chief justice
• Outgoing CJP Bandial says he harbours no ill will towards anyone
ISLAMABAD: With Justice Qazi Faez Isa all set to take oath as the 29th chief justice of Pakistan on Sunday (today), a positive vibe is in the air that may help diminish the impression of a divided Supreme Court. “You will see unity in the Supreme Court soon,” confided a number of high-ranking officers during a series of interactions over the last few days.
The biggest challenge Justice Isa may encounter during his tenure as the CJP would be unifying the court and restoring the court’s credibility, so that no one could point a finger at the court’s judgements.
The perceived practice of the formation of a particular bench consisting of ‘like-minded judges’ to hear constitutional matters of public importance has become the basis of criticism of the top judiciary.
There has been a general feeling that senior judges were being left out in the formation of benches for desired outcomes of the proceedings.
On his first day at the helm on Monday, Justice Isa will take up a set of challenges to the Supreme Court (Practice and Procedure) Act 2023 — a bill that required the formation of benches on constitutional matters of public importance by a committee of three senior judges.
An eight-judge bench headed by the outgoing CJP on April 13 suspended the enforcement of the Supreme Court (Practice & Procedure) Act, 2023.
In a statement, a Justice Isa-led commission had earlier questioned the formation of a bench that was hearing a set of six challenges against the probe body formed to look into the audio leaks, saying that the bench hearing the matter was not determined by a three-member committee of judges as required under the suspended act.
Since the petitions challenging the audio commission were not fixed before the bench constituted by the committee of judges; therefore, these petitions cannot be heard until the committee determines which bench should hear them, the commission had stated.
On June 3, Justice Isa decided not to sit on a nine-judge bench hearing cases on the trial of civilians by the military courts, saying he did not want to violate the suspension of the law; until the court decides about the vires of the practice and procedure law he will not sit on the benches. As a result, Justice Isa chose to do chamber work instead of holding court hearings.
The biggest test Justice Isa may face as the CJP, according to a senior counsel who wished not to be named, will come when the controversy regarding general elections within 90 days of the dissolution of the national and provincial assemblies may land in the Supreme Court.
In addition, he will also have to maintain a working relationship with the executive. President Arif Alvi asked the Election Commission of Pakistan to seek guidance from the Supreme Court on holding general elections on the same day.
About the pending hearing on the trial of civilians by the military courts, the counsel explained that the case may not be his individual challenge but of the entire court, and since Justice Isa had already expressed his opinion in an earlier case, he might even choose to sit on the bench.
In a dissenting judgement against military courts in August 2015, Justice Isa observed the 21st Amendment does not succeed in its attempt to try civilians by the military and that the Anti-Terrorism Act, 1997, which if implemented would help to stem terrorism and also ensure the conviction of terrorists.
To determine how Justice Isa will conduct his business at the SC, the senior lawyer said he “understands the dynamics clearly” as he remained the top judge of the Balochistan High Court from 2009 to 2014 — a very sensitive period when military operations were ongoing in Balochistan. Another challenge for Justice Isa will also be how to tackle the whopping pendency of over 56,000 cases.
CJP Bandial’s legacy
Justice Bandial had a very “polite and gentle demeanour but leadership qualities were not his forte”, the counsel said, adding that political perceptions allegedly dictated his administrative decisions.
Meanwhile, former additional attorney general Tariq Khokhar recalled: “It was a simple case of an unconstitutional and idiotic dissolution of the National Assembly. Just before 4pm on April 7, 2022, the outgoing CJP ‘promised’ elections, but shortly after 8pm on the same day, he went back on his word. A familiar script. The judiciary serves where it ought to reign.”
“There were to be no elections and the assembly was restored. It was now for the assembly and in particular for the speaker to take steps to enable the assembly to meet and conduct its proceedings.
But under an ‘inverted jurisprudence’, specific directions were issued regulating the general sweep as well as the minutiae of parliamentary proceedings, he said.
“Consequences included a government of the likeminded, by the likeminded, for the likeminded, with a likeminded opposition,” he alleged. It opened the “Pandora’s jar”, releasing all manner of violence to the Constitution and constitutional institutions, parliamentary democracy and opposition.
Having reversed the course of general elections once, the CJP was fated not to affect another till the end of his days. In vain, the outgoing CJP tried and tried again to recover what had been lost, he said, adding his “nemesis now included the executive, legislature and controlled institutions”.
That one act of “acquiescence” against elections overshadows all his previous acts of “administrative and judicial usurpations,” he regretted, adding it was a “dark hour” and the term “midnight courts” had entered our etymology of justice.
Meanwhile, on his final day as the CJP, Justice Bandial invited the court staff to the ceremonial hall of the Supreme Court adjacent to the courtrooms and greeted them individually. The outgoing CJP said he harboured no ill will against anyone during his tenure as the top judge.
The CJP said the next two to three years might be difficult because of the economic crunch and also quoted saying of Hazrat Ali about the importance of patience. During the interaction, the outgoing CJP had to pause during speech as he struggled to hold back tears.
Published in Dawn, September 17th, 2023