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Photo Source: The Daily Times

Pakistan Reader# 368, 2 August 2022

The superior judiciary in Pakistan is divided: Four reasons why



The tendency of current superior judges to impersonate constitutional interpretation is an emerging trend since the 2010s

Ankit Singh

On 29 July, the Chief Justice of Pakistan (CJP) who is also the chairman of the Judicial Commission of Pakistan (JCP) ordered an open audio release of over two-hour long meeting of JCP. The action was intended to keep the ground clear of speculations about the possible division among the superior judiciary which had been observed on several previous occasions. The audio recording of the JCP meeting clearly showed that CJP was unhappy with the diverging views of several members over the elevation of various high court judges to supreme court judges. Currently, there are 13 judges in SC against sanctioned strength of 17 judges and clearly, the members were not comfortable with the paced effort by CJP over getting his recommendations approved from the JCP. What explains such initiative to release meetings of a constitutional body? How the parliamentary resolution by the coalition government on judicial reforms is a symptom of the judiciary’s encroachment in the legislative domain? Is the crisis in the superior judiciary hinting at a systemic collapse in Pakistan?

Four reasons why the supreme judiciary is divided
First, the debate on interpreting Article 63(A) within the judiciary. The divide gets deeper on a broader level as to whether the judiciary should remain the protector of the constitution or the protector and the guarantor of the constitution. 17 May verdict by SC on Article 63 (A) nullified the countability of votes from defectors, the verdict read as “Political parties are an integral aspect of the bedrock on which our democracy rests and their destabilisation tends to shake the bedrock, which can potentially put democracy itself in peril.” The five-judge bench passed this verdict and the minority bench dissented from this as they saw such interpretation of Article 63 (A) as SC encroaching on the powers of the speaker of the assembly and nudging the practices in the legislative domain. Another argument was to accept the conscience of the defector, who has risked his/her qualification to remain as a legislative member in exercising their democratic choice. Justice Qazi Faez Isa penned a letter to CJP to form a larger bench of senior judges to ponder upon advisory related to conduct around Article 63(A). The ‘lotacracy’ as cancer or as a reality check for elected representatives is a critical point of division within the judiciary. The cumulative effect on advisory and judgement on Article 63(A) will likely modify the politicking in Pakistan and reinforce the doctrine of necessity employed by the judiciary.

Second, judicial activism and strongman tendencies in the functioning of the CJP in the recent past. Since the time of Iftikhar Muhammad Chaudhry, the constitutional post of CJP is being contested as a matter of political polarization which could impact the independence and integrity of the judiciary. Throughout the year 2011, Chief Justice Iftikhar Muhammad Chaudhry with his renewed zeal tried to bring the then President Asif Ali Zardari accountable for a graft case in a Swiss scam. The PPP president Asif Ali Zardari never conceded the crime and the case file is roiling in the stack of the registrar's office of SC. Though the suo-moto calling on the Swiss scam by the judiciary did manage to remove the popular PM Yusuf Raza Gilani and destabilized the tenure of PPP. The CJP was considered a key ally of the opposition, many believed in those years. 

 

The tables turned against PML-N with new CJP Saqib Nisar. PM Nawaz Sharif was booked in the Avenfield apartment case, the lack of honesty and truthfulness denied Nawaz Sharif to remain as party president. The verdict barred Nawaz Sharif from holding any public office and he lost the prime ministership of the country. Later the National Accountability Bureau (NAB) could not provide substantial evidence against the PML-N supremo in the Panama papers case. However, the judicial coup had taken place in conforming with the state’s objective to dislodge PML-N from Punjab and Pakistan. 

As former CJP Iftikhar Chaudhry had said, he was trying that the democratic system of the country to continue. Justice Qazi Faez Isa during a public lecture also said that this is a system of governance that Pakistanis have chosen for themselves, hinting that system is not ideal and had its own gives and takes. 

Currently, the PTI has been criticizing several judges of superior ranks because some verdicts came against it, for example, the 13 July detailed verdict on the national assembly speaker’s ruling on dismissing the no-confidence motion against Imran Khan with the conviction that it was a foreign conspiracy. The verdict declared that PTI leaders like Imran Khan, President Arif Alvi and Speaker Qasim Suri had violated the sacred ethos of the constitution. The objective of justice delivery through judicial activism is being challenged from within as some senior judges prioritise doctrine of power division while some are enthusiastic about substantial justice through doctrine of necessity. The effort to de-hyphenate or not from the political developments has kept the judiciary polarized. That explains why CJP has preferred elevation of certain judges to which other members of JCP had asked for more substantial reasons to be considered.

Third, is the functioning and role of JCP. The JCP is a constitutional body proposed under the eighteenth amendment, the amendment enabled a twist in the appointment and elevation of judges. The debate on hierarchy and promotion based on seniority or merit have become more relevant since that development. of Pakistan. The civilian and political representatives in JCP have diluted the independence and integrity of the judiciary that is where the judiciary has found its Achilles heel. Justice Isa on 27 June, wrote another letter to CJP, questioning how JCP meeting was summoned by CJP and why extensions were given to 13 judges of Lahore High Court. He maintained that senior-most judges were not consulted who were on sanctioned leave. He also questioned the accountability of such procedures and warned of the consequences of bypassing other senior judges. Provincial Bar councils have boycotted the court work in their protest against the elevation of junior judges over senior judges. The recent JCP meeting and consideration of junior judges as potential SC judges also attracted criticism from Pakistan Bar Council and Supreme Court Bar Council. The JCP, a realm for legislative and judiciary and executive has taken the judiciary a foot deep into the murky political waters of Pakistan and impacted its independence.

Fourth, Justice Qazi Faez Isa and the progressive justiciability, he has stood for. Justice Isa is seen as an independent-minded and supposedly the next CJP after the current CJP retires. Justice Isa has been vocal about his opinions and publicly registered his objections against the procedural and constitutional functioning of the Supreme Court. He has written more than three letters to CJP since last year, he has written one letter to President about his reference case too when FIA had claimed lack of trail in his family’s net income and assets. He came out clean and SC termed the reference as invalid. He has been vocal and courageous in his stand in cases like the ‘Memogate’ scandal where he held Hussain Haqqani disloyal to the country, the Quetta massacre commission in which he instructed the strict implementation of the Anti-Terrorism Act, Faizabad sit in commission in which he directed and federal and provincial agencies including chiefs of the armed forces, to initiate action against armed forces' personnel found to have violated their service oath. Justice Isa is considered an honest and truthful man, him taking over the top judge post in Pakistan has raised brows within the judiciary as well, as he might change or stop the judicial currents in interior matters of the state. The judiciary has conflicted with the executive and colluded with the military through its doctrine of necessity. An independent-minded CJP does not bode well for ambiguous power corridors in Pakistan. Justice Isa's elevation as a CJP will challenge and impact the traditional alliance of the judiciary with the military.

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