Malik Nasir Mahmood Aslam is concerned about a lingering rift
A Judiciary Divided – It was expected that the upheaval of 9 May 2023 and its after-effects would calm down nerves of Pakistani institutions concerned with governance and they would rationally start taking stock of the situation. Unfortunately, this expectation came to naught as the lingering atmosphere of conflict revealed no sign of settling down and it appears that the feuds are still in their place and may keep on increasing the schisms existing within the governance segments. One of the most worrying aspects of this battle of egos is the rift within the apex judiciary that is showing no signs of healing and may exacerbate the intense instability that has wrecked the country. In the backdrop of severe economic crisis, the internecine fights within the governance structure are a recipe for disaster and it is now realised that a divided outfit may not be able to steer the country out of myriad troubles it finds itself in. It is quite obvious that there hardly exists a framework that may bring about a thaw in the glacial relationships in the top ranks of the governance circles that may cobble a compromise badly required to reduce high levels of tensions and initiate policies based on rationality and mutual understanding.
It is unfortunate that the wrangling in the top court of the country has deeply dented the image of the probity of the apex judiciary. With the incumbent and incoming chief justices still seemingly fighting over issues big and small with the result that the Supreme Court appears distracted and has apparently lost is focus with its core responsibilities falling by the way creating a serious vacuum in the governance process. Coupled with the wave of political unrest that has gripped the country the judicial strife has become a serious problem for the country. Adding to the woes is the unending economic crisis that has practically crippled the country causing an inertia that may prove an existential threat. In the wake of the fact that the superior judiciary that is supposedly a fountain of wisdom and prudence is curiously displaying an inability to get over what is seen as personal differences to agree on basic operational procedures. The issue of holding elections in two provinces has so badly perplexed the collective wisdom of the court that it has become unable to enforce a straightforward rule enshrined in the constitution and this inability has depleted the institution’s prestige and authority.
It is widely acknowledged that a swift and transparent ruling on the election matter could have spared the country the tremendous unrest it experienced as the political stakeholders drew their own conclusion from the divisive opinion of the judiciary and took contrary actions that complicated the situation. The ensuing result is that those caught on the wrong side of the current power holders have been complaining about a gradual breakdown of the legal order while the coalition dispensation has displayed a general contempt towards rules and laws. It is quite obvious that this complication is the offshoot of judiciary’s present inability to stand firm and united has greatly emboldened lawbreakers and made them seem invincible. Actually the political leanings within the ranks of judiciary polarised their opinion with both poles taking action against each other providing opportunity to the warring political factions to take matters into their hands resultantly a rumpus was caused shaking the country. The resulting chaos has deeply challenged the judicial authority and the executive as well as the populist political elements now treat release orders, bails, habeas corpus rulings etc. with disdain seriously rupturing the functional viability of the separation of powers and the authoritarian tendencies have re-emerged as a consequence.
It is not that the reports about rifts in superior judiciary are part of the widespread conjecturing regime but they have been accorded credibility by the recent observation made by the Chief Justice of Pakistan (CJP) pointing out to the efforts aimed at driving a wedge between jud¬ges of the Supreme Court and his assertion has confirmed that the judiciary is indeed divided. This impression has been further strengthened by the regrets expressed by senior pusine judge on the stay granted by the Supreme Court (SC) under instructions from the CJP to the government-appoi¬nted three-man commission of inquiry on audio leaks. He emphasised that the grant of stay was not required as the commission had already made it clear that the inquiry body will not encroach upon the domain of the Supreme Judicial Council (SJC), a constitutional body which probes allegations of misconduct against judges. The commission was constituted by the coalition government under the Pakistan Commission of Inquiry Act 2017 without even consulting the CJP, a practice usually followed in the past but the CJP stayed its proceedings on the pretext that he was not consulted about the matter. Though the CJP was at pains dispelling the impression of a divided judiciary insisting that the judges have a cordial relationship with each other but many relevant stakeholders have taken this assertion with a pinch of salt. They point out that the absence of a full court meeting of all judges for the last more than two years is a clear pointer towards the discord and that denying it would be superfluous an attempt that would convince no one.
The divide between the judiciary became acute ever since the SC suspended the Supreme Court (Practice & Procedure) Bill, 2023, a bill aimed at clipping the powers of the Chief Justice of Pakistan (CJP). As a consequence the senior pusine judge, who is also slated to become the new CJ after the incumbent retires in September, has been doing chamber work only and not hearing any case. The divide actually occurred after a majority SC order that required verification by tax authorities of three offshore properties in the name of the wife and children of Justice Qazi Faez Isa, the senior pusine judge. There is in fact no effort by any outside force to divide the judiciary and the source of division is decidedly internal as was borne out by the fact that the CJ hosted a dinner to reduce the temperature but it was not attended by Justice Qazi Faez Isa and some retired judges who were also invited.
It is pointed out in this context that in the absence of a full court meeting, some judges have resorted to writing letters to the CJ that then are leaked to the press. Such letters highlighted the written complaints, including from the Pakistan Bar Council, alleging misconduct and financial impropriety by one controversial judge and both the author judges were awaiting the time when the CJP convenes an SJC meeting on the issue. The letters also highlighted the need to exonerate the respondent judge and fully restore his honour or else submit report in terms of the Constitution. It is pointed out by relevant quarters that the reason behind the division among superior court judges is lack of good communication on important administrative matters and the absence of regular meetings of the full court that invariably helped to clear the air. It is also mentioned that full court meeting is the best legal forum to decide administrative matters. It is unfortunate that the division is exacerbating by the day proving harmful to the national interest. The Weekender