ISLAMABAD:
A division within the ranks of the Supreme Court (SC) of Pakistan has left the door open for other state institutions to challenge its authority.
The cracks first appeared when a full court took up Justice Qazi Faez Isa’s petition against a presidential reference that accused him of hiding his family members’ foreign assets and sought his removal in May 2019. There were two camps of judges during ex-chief justice of Pakistan Umar Ata Bandial’s era.
The divide among the judges had further widened since February 2023 when the court, led by Justice Bandial, invoked its suo motu jurisdiction and took notice of the delay in the announcement of polls in two provinces.
The unfortunate aspect of these judicial politics is that both sets of judges started seeking support from external institutions to weaken each other’s position.
The Supreme Court Practice and Procedure Act 2023 was enacted to regulate the CJP’s power as then chief justice Bandial was mostly appointing like-minded judges to hear high-profile cases. It was witnessed at the time that one camp of judges was being backed by the Pakistan Tehreek-e-Insaf, and the other one was supported by the PDM-led government which held power during Justice Bandial’s era.
After taking oath as CJP in September last year, the real challenge for Justice Qazi Faez Isa was to unite the Supreme Court. Unfortunately, it seems he has been unable to achieve this feat.
If anything, the situation appears to be getting worse and external elements are taking advantage to further weaken the authority of the superior judiciary.
A senior lawyer believes that the judiciary can only be truly strengthened when senior judges do not have the specific agenda of weakening or strengthening one political party or government/security establishment.
When the state institutions decided to take action against PTI after the May 9, 2023 incidents, the courts should have acted independently without being influenced from either side. However, the court’s judicial proceedings were manipulated against PTI leaders, especially Imran Khan.
Even superior court judges started complaining about the interference of executive agencies in judicial functions. Senior government officials are also admitting that CJP Isa was unable to deal with the letter of six Islamabad High Court judges who complained about interference in judicial functions.
After the IHC judges’ letter, a fresh division was created within the SC on ideological lines. The majority of superior court judges wish there to be no compromise on the independence of the judiciary. The results of the February 8 general became a major turning point, and intensified the judges’ resistance against external elements.
After the July 12 order in reserved seats case, the division within the SC increased further with several incidents being reported of an ever-widening rift between the judges.
It is visible that one section within the government wants to get a two-thirds majority in the parliament to invoke a constitutional amendment. Efforts are still being made to achieve this objective, and a judicial package is linked to this.
There are serious apprehensions within the government that the present system can end, if election tribunals are allowed to act independently in Punjab and Islamabad. In view of these apprehensions, one section in the corridors of power wants CJP Isa’s tenure to be extended.
On the other hand, another section wants Justice Syed Mansoor Ali Shah to take oath as the new CJP on October 25. The recent judicial politics are also continuing based on these two objectives. Experts are saying that there may be a big surprise from the SC on Thursday (today).
For some time, the Supreme Court has been lacking a leadership which can unite the institution itself.
A former law officer states that best course is to let Justice Mansoor take charge on October 25. “He has the ability to unite. I hope he even takes along the present dissenters,” the officer said. “The real strength of the SC lies in its unity. A house divided against itself is most vulnerable,” he asserts. He says that the dissenters cannot swim alone for long or too far. “There will be capacity and leadership issues”
Election Act amendments
Former additional attorney general Tariq Mahmood Khokhar states that the proposed Elections (second amendment) Act, 2024, represents a “legislative overruling” of an eight-member majority judgment of the Supreme Court in the reserved seats case. He said it was corollary to the two-member minority opinion.
“Both aim to enable the Election Commission to resist the Supreme Court and its decision. An unrepresentative parliament, “legislating” purposely to overrule a constitutional judgment, through ordinary legislation, with retrospective effect, is no legitimate legislation,” Khokar believes
He says that it is a case of the legitimately interpretive against the illegitimately legislative.
“The proposed legislation and the minority opinion aim to diminish the role of the judiciary, and enhance the role of a dysfunctional institution. It sets the stage for an institutional revolt.
He continues that all of this being done to engineer a two-thirds majority and rush a “constitutional package” through. He concludes that such an action is against the rule of law, the independence of the judiciary and parliamentary democracy.
Khokhar says that the phantasm is to manipulate that which the PTI Election Symbol case failed to manipulate. “It is to curtail the magnitude of Imran Khan’s electoral sweep.”
