CHIEF JUSTICE Qazi Faez Isa has made his mark on his very first day in office by ordering the live-streaming of the full court hearing petitions challenging the Supreme Court (Practice and Procedure) Act, 2023. It was an unprecedented event in Pakistan’s judicial history that may reshape the institution.
While live-streaming has opened up the court to the public, ready access to the proceedings within could also mould public perceptions about the superior judiciary. The judges and litigants engaged in arguments in full live view of the public on TV screens. In fact, even the difference in views among the judges on this extremely important constitutional matter was evident. It was a fascinating experience for the public to see it all live.
Whether or not live telecasts lead to greater transparency in the delivery of justice remains to be seen. Nevertheless, the presence of cameras in the courtroom and the perception of being watched renders the judges open to public scrutiny and accountability.
Pakistan is not the first country to live-stream such proceedings in the apex court. There are others, including India, that regularly live-stream apex court proceedings on important constitutional issues. In some other countries, the videos of court proceedings are uploaded on websites. In Pakistan, this new beginning has lifted the veil over apex court hearings.
A major challenge before the new chief justice is to restore the public’s faith in the top judiciary.
However, a major challenge before the newly installed chief justice is to restore the public’s confidence in the top judiciary. This trust has been badly tarnished because of the perception of political partisanship and judicial populism. Over the last few years, the top judiciary has been sucked more deeply into the country’s reckless power struggle, polarising the bench and the bar.
Its unnecessary involvement in political matters, which should be resolved in parliament, made the top court controversial and reinforced the widespread perception of it being partisan. The divide within became uglier with the judges engaging in open polemics. Split down the middle, the apex court had been fighting an uphill battle to maintain its sanctity.
The rift came to the fore when some of the judges challenged the former chief justice’s authority and called for ending what they described as a “one-man show”. The split took an ominous turn as the disagreements came out into the open. In his new position, the first job of the chief justice, who was perceived as being the focal point of the divisions, is to restore the sanctity of the apex court and end the polarisation.
It was, therefore, not surprising that Chief Justice Isa took up the Supreme Court (Practice and Procedure) Act, which has been a major point of conflict dividing the top judiciary, on his first day in office. The Act, which clips the powers of the chief justice, was suspended by an eight-member bench in April this year even before it came into effect.
The pre-emptive strike was described in a resolution in the National Assembly as an “aggressive attempt of the Supreme Court of Pakistan to abrogate the unquestioned constitutional authority of parliament to make legislation…”. It heightened institutional tensions. The composition of the bench that heard the petition also widened the divide within the court itself.
Questions have long been raised by the legal fraternity, as well as by judges, on the concentration of power in the office of the top judge to take suo motu notice and form benches. There may be a difference of view on whether the changes in rules should be carried out through an act of parliament or be left to the apex court to do, but the legislative powers of parliament cannot be questioned.
The senior-most puisne judge at the time, the current chief justice had demanded a full court hearing on the petition before proceeding on other constitutional cases. He refused to be a part of any bench until the matter was resolved. His decision to hold a full-court hearing on an extremely important matter related to the powers of the chief justice is seen as the validation of his views on the need for democratisation of the functioning of the top court.
While the hearing on the petitions would continue, the court appears divided between the constitutionalists headed by Justice Isa and those seeking to preserve the power of the chief justice. Irrespective of the difference in views, the decision will provide a way forward on reforming the functions of the apex court.
Reputed to be an upholder of supremacy of the Constitution and defender of human rights, the new chief justice faces high expectations to take up the issue of political prisoners being tried by military courts. According to media reports, more than 100 PTI supporters have been handed over to military authorities for trial under the Army Act. Thousands of other political workers, including women, are said to be detained under the anti-terrorism laws without being formally charged.
Chief Justice Isa has previously taken a strong position against civilians being tried by military courts. The controversial amendments to the Army Act have given sweeping powers to the intelligence and law-enforcement agencies to detain anyone without charge. Although the enactment of the law remains controversial because of the president’s denying that he gave his assent to it, it is already being used against political detainees.
Similarly, the controversial amended Official Secrets Act is now being used to persecute politicians. The spectacle of former foreign minister, Shah Mahmood Qureshi, being brought to court handcuffed for trial is shameful. Former prime minister Imran Khan is also facing an in-camera trial under this draconian law on the so-called cipher issue. Nothing could be more farcical than to apply the Official Secrets Act to an issue that has been so widely discussed on public forums against former holders of public office.
As the custodian of the judicial system, Chief Justice Isa has a great responsibility to guard against creeping authoritarianism and violation of human rights in the country. Democracy and the Constitution are under threat. Let’s see if the upright judge can meet all expectations.
Published in Dawn, September 20th, 2023