Restraint needed

[ghazi52]

,.,.

Restraint needed​

Editorial
September 17, 2022

IT is regrettable that the country’s most senior judges continue to air their internal disagreements in public, which has allowed partisan critics to continue assailing the integrity of the Supreme Court.

After the chief justice publicly regretted on Monday that the incumbent government had scuttled the appointment of several judges named by him for elevation to the apex court, a letter addressed to the Judicial Commission of Pakistan by the senior puisne judge and a colleague — which was apparently leaked to the press — communicated that the latter two wanted to maintain a distance from the chief justice’s position.

Despite hopes that the institution had been working on resolving its issues, it is apparent that troubles persist.

It is important, for context, to review the differences among the senior judiciary.

The pressing issue at the moment is the appointment of judges to the Supreme Court, which has been left with a considerably reduced strength after the retirement of several justices.

In August, the chief justice had, at the JCP forum, proposed five names for elevation. However, most of the nominations were resisted by the majority of the commission, which must approve all appointments to the Supreme Court. The meeting had thereafter been adjourned without a decision.

The chief justice has now said that the government’s representatives in the commission opposed his nominees because of the Supreme Court’s ruling in favour of the PML-Q’s Pervaiz Elahi in the Punjab chief minister election case. On the other hand, the dissenting JCP members have maintained that the chief justice should not ignore the seniority principle and that there needs to be a formal criterion for the elevation of judges rather than leaving nominations to the chief justice’s discretion.

Not only is the deadlock on the issue getting uglier, it is also affecting the court’s functioning.

It is clear that the Supreme Court, saddled with a huge backlog of cases, needs those appointments urgently. It is feared that divisions may deepen in the judiciary and the bar councils, forcing stakeholders into partisan camps. This would be immensely damaging to the Supreme Court.

The growing perception of internal differences appears to have eroded the apex court’s standing as a neutral arbiter on matters that fall in its domain. Already, its judgements are being interpreted as favouring one political faction or the other, even though the institution had, till recent years, largely maintained a distance and aloofness from the political domain.

It is imperative that both the judiciary and its attached institutions open an honest dialogue and reach an amicable resolution to their prevailing differences.

It would also be better to keep this dialogue away from the public eye, as most commentators are ill-equipped to understand or participate in what should be an internal debate among the judges and bar representatives.

The Supreme Court must not be destabilised any further.

Published in Dawn, September 17th, 2022

Restraint needed

Growing perception of internal differences appears to have eroded SC’s standing as neutral arbiter.

www.dawn.com

 

[SIPRA]

Great. Dogs are fighting.

 

[Maea]

Throw these clowns out, burn their houses and make an example out of them. These bitches wont even get a job as janitors in most countries and here we have them as our top judges, just shows you how much the country is damaged, both phisicaly and and morally.

 

[ghazi52]

,.,.

Differences among SC judges grow starker​

Senior lawyers say divisions between 'two camps' likely to deepen further after joint letter criticising CJP's speech


Hasnaat Malik
September 17, 2022

---

ISLAMABAD: The Supreme Court is facing an unprecedented widespread perception that differences among its senior judges are growing starker in the light of recent unusual events -- a festering issue which many anticipate might worsen.

A slew of public statements and retorts — and the ensuing controversy — that capped the top court's judicial year has further deepened this perception, raising the eyebrows of many who say the extraordinary sequence of events indicates the court of last resort is divided into camps.

The supposed rifts became all the more pronounced after senior puisne judge Justice Qazi Faez Isa and his colleague Justice Sardar Tariq Masood expressed dismay over Chief Justice of Pakistan (CJP) Umar Ata Bandial’s speech at the new judicial year ceremony, saying he “said much more” than what he was supposed to say at the event.

Apart from other issues, the supposed two camps are facing a brewing mistrust on the issue of judges' appointments. However, legal experts connect the dots back to a number of events in recent years, especially the ‘Justice Isa factor’.

It is understood that Justice Qazi Faez Isa's case has severely affected the working of the apex court. The proceedings in the case have negatively affected the relationship between SC judges, who expressed their differences through judicial orders, speeches and letters.

This is in many ways unprecedented as no such divisions were witnessed during the era of former CJP Iftikhar Muhammad Chaudhry under whom no judge had ever dissented on any crucial issue.

Although some clashes between the top court’s judges came to the fore during the ex-CJP Mian Saqib Nisar's tenure, the CJP handled the situation tactfully.

However, Justice Qazi Faez Isa had raised serious questions over the manner in which public interest litigations were initiated by the human rights cell of the top court during Nisar’s tenure. He had also expressed serious concerns over the dissolution and reconstitution of a bench by CJP Nisar at the SC’s Peshawar Registry on May 8, 2018.

After seven months, another judge, Justice Syed Mansoor Ali Shah, called into question the May 8 reconstitution of an apex court bench and called the decision ‘unwarranted and unprecedented’.
Prior to this, Nisar had taken up a constitution petition challenging the appointment of Justice Isa as the chief justice of the Balochistan High Court. However, he later dismissed the petition after lawyers voiced their concerns.
Interestingly, incumbent CJP Umar Ata Bandial was a member of the bench which rejected the petition against Justice Isa's appointment.

SJC proceedings

In May 2019, another wave of the clash was triggered when Justice Isa raised questions about the conduct of the Supreme Judicial Council led by ex-CJP Asif Saeed Khosa. Justice Isa later went on to accuse the SJC as biased against him.

Subsequently, he challenged the SJC proceedings against him in the apex court. Superior bars, too, joined him in contesting the SJC proceedings against him.

When the apex court took up the petitions against the SJC proceeding, the counsel for Justice Isa said that two judges, namely Justice Ijaz ul Ahsan and Justice Sardar Tariq Masood had a direct interest in the case against Justice Isa. He argued any judge who had a personal stake in the case, should not be attached to it.

However, presiding judge Justice Umar Ata Bandial was visibly upset at the counsel's request regarding the recusal of two judges. However, both judges decided to recuse from the bench.
The matter was referred to ex-CJP Khosa for constitution of the full court. A ten-member full court resumed the hearing of Justice Isa's case.

In June 2020, the majority of the judges referred Justice Isa's family's matter to the FBR for inquiry and a fresh report before the SJC within a specific period of time. Incumbent CJP Bandial had authored a detailed majority judgement wherein Justice Isa's family matter was referred to FBR for inquiry. However, the lawyers had unanimously expressed serious concerns over his ruling.

In April 2021, a majority of the judges overturned CJP Bandial's ruling by accepting Justice Isa and other review petitions. It was witnessed that SC judges also exchanged harsh words during the hearing.

Even CJP Bandial in a minority judgment had held that Justice Isa should have explained his position before the SJC regarding his family properties.

A judgement given by the three judges of the Supreme Court had also expressed serious concerns over Justice Munib Akhtar’s view that the majority judgment in Justice Isa's case was not a binding future legal precedent.

Ex-CJP Gulzar and Justice Isa

The relationship among SC judges went on a low ebb during CJP Gulzar Ahmed's tenure on account of their differences regarding the elevation of junior judges to the SC as well as the exclusion of senior judges from the benches hearing high-profile cases.

Gulzar had passed an unprecedented order that held that Justice Isa should not hear cases related to former prime minister Imran Khan. Interestingly, incumbent CJP Bandial was the signatory of that order.

Secondly, an unprecedented order was passed by then-acting CJP Bandial by annulling the suo motu proceeding initiated by a division bench led by Justice Isa regarding the protection of journalists.

Senior lawyers believe that both orders were unprecedented and uncalled for. The conflict among the senior judges widened after these orders.

During CJP Bandial's tenure, Justice Isa questioned the composition of benches to hear high-profile cases without his consultation. He also expressed serious concern over the summoning of the Judicial Commission of Pakistan (JCP) meeting in his absence as he was abroad on summer vacation.

On July 28, a majority of JCP members did not approve CJP nominees for their elevation to the SC. Later, the CJP initiated dialogue with senior judges on the matter of elevation but deadlock persisted.

Several lawyers believe that the joint letter from Justice Isa and Justice Masood will further create divisions within the apex court and are of the opinion both judges should have refrained from sharing the letter with all JCP members.

A senior lawyer says that it is almost impossible that conflict among SC judges will end in the prevailing situation. However, he urged both sides to work together for the betterment of institutions otherwise history will not remember them with a good name.

Renowned lawyer Hamid Khan however said that issue was started when CJP Bandial expressed his grievance in his speech which was "uncalled for". He said that the CJP was nominating junior judges' elevation to the SC and then expressing grievance regarding JCP members in his speech.

However, he endorsed the CJP's concern that bar representatives should have not influenced the judicial proceedings by requesting the formation of a full court in that case.

He however said that it is the responsibility of the CJP to evolve a consensus among senior judges. Hamid Khan says that elevation to the SC should be based on seniority only.