On completion of term of Justice Umar Ata Bandial as 28th Chief Justice of Pakistan (CJP), Justice Qazi Faez Isa took oath of office as his successor on September 17, 2023. Justice Bandial during his 20-month tenure was unable to improve the judicial system, as evidenced from the 2022 World Justice Project index, where Pakistan ranked 129th out of 140 countries.
Pakistan’s overall rule of law score remained stagnant at 0.39 in the last five years (2017-2022) starting from the tenure of Mian Saqib Nisar up-till departure of Umar Ata Bandial. No visible improvement is apparent in these indexes in the last four CJPs’ tenures.
During Bandial’s term of office, a heated debate started regarding composition of benches, alleged favoritism, and controversial decisions. The most startling aspect of controversy was alleged preference to some “favourite” junior judges while excluding senior judges from benches hearing important cases of constitutional interpretation.
The former CJP himself adopted two divergent positions when interpreting Article 63(1)(b) of the Constitution of Islamic Republic of Pakistan [“the Constitution”].Firstly, when disposing petitions filed for change of loyalties by some members of National Assembly, and secondly, when rejecting the Deputy Speaker of Punjab Assembly’s ruling.
The retired CJP faced criticism even from some fellow judges for taking suo motu notice under Article 184(3) of the Constitution of elections in Punjab on recommendation of two judges. It was done even when the order of Lahore High Court was in field to hold elections within 90 days after premature dissolution of the provincial assembly. He even included those two judges in the bench to hear the case.
The three-member judgement regarding election schedule in Punjab was rejected by the National Assembly through a resolution. It was also noted that in similar circumstances, the apex court did not give any schedule for election of dissolved provincial assembly of Khyber Pakhtunkhwa. The natter was rather sent back to Peshawar High Court where petitions were pending.
As Chairman of the Supreme Judicial Council (SJC), Justice Bandial also remained under criticism for appointing junior judges that at one point of time created a deadlock delaying the meeting to fill vacant positions in the Supreme Court.
He also deferred a reference against Justice Sayyed Mazahar Ali Akbar Naqvi. Another controversy related to appointment of the registrar of Supreme Court. Furthermore, a bench headed by him, stayed the Supreme Court (Practice and Procedure) Bill 2023 before its becoming an Act passed by both the houses of Parliament.
He refused to recuse himself from a case alleging conversation of his mother-in-law in an audio. A five-member bench decided this matter vide judgement in open court on September 8, 2023.
The new CJP, in addition to facing the grim challenge of undoing the contentious legacy of some of his predecessors, has to decide many pending constitutional issues, especially defining clear boundaries that demarcate jurisdiction of high courts under Article 199 and Supreme Court under Article 184(3) of the Constitution.
This holds significant importance in order to mitigate the risk of any possible misuse/abuse of Article 184(3), a spectre haunting the country since the days of Chaudhry Iftikhar.
In recent years, according to some critics, there were alleged breaches of Judges’ Code of Conduct that gained momentum during Saqib Nisar’s tenure when he started television appearances, fundraising for Dam Fund, meetings with political party leaders, and even attending their party gatherings. The critics specifically mention removal of senior judge of Islamabad High Court by convening a meeting of the SJC without initiating an inquiry into allegations made by the judge against a high-ranking military official.
The higher judiciary has yet to address the plight of Nasla Tower victims. It is necessary to scrutinize the rationale behind the speedy decision of the 60-year-old land allotment dispute by invoking suo motu jurisdiction under Article 184(3), thus denying right to appeal to victims. The matter could have been referred to high court or other appropriate judicial/administrative forums.
Another critical issue is the judgement in Bahria Town Karachi case approving a settlement of Rs 460 billion and restraining National Accountability Bureau from pursuing its reference. The apex court sanctioned the phased payments. It later assumed political dimensions, after alleged corruption charges against former Prime Minister in the matter.
The alleged authorization of adjustment against fine of remittance of 190 million pounds from the UK government, meant for the government treasury, requires immediate scrutiny by the apex court. Supreme Court sanctioned payment through instalments, but how funds from the UK government could be adjusted against the fine.
As Pakistanis have great expectations from the new CJP, he bears an augmented responsibility to uphold equilibrium and guarantee strict adherence to the principle of separation of powers in the days ahead. On one hand, he has to deliver justice in approximately 57,000 cases awaiting adjudication and on the other to reform the judicial system to consolidate its internal, external, and institutional independence.
This involves rigorous accountability and maintaining transparency in judicial affairs, ensuring that justice is not only served, but is also perceived to be served, as mandated in the Judges’ Code of Conduct.
The new CJP has also to structure/rationalize power of contempt of court, outlined in Article 204 of Constitution. In recent years, this power was allegedly abused, beyond the original intent before the framers of the supreme law of the land.
Instead of using it primarily to compel the executive to enforce judicial orders in letter and spirit, it was wielded against anyone questioning the role of judges, even if it relates to alleged violations of their code of conduct. Even the legal fraternity says that during Saqib Nisar’s tenure, this power was unjustifiably exercised against some politicians.
Article 209 of the Constitution gives extensive powers to CJP as Chairman of SJC, for ensuring accountability within the judiciary. The CJP has the discretion to convene an SJC meeting or shove controversial issues under the carpet, as was done in the past.
If the incumbent CJP collaborates with the legislature to develop comprehensive mechanisms enabling it to amend the Constitution, introduce a robust accountability framework while preserving judicial independence and preventing any misuse of powers, it would be a great service to the nation.
The new CJP faces a host of challenges, including taking cognizance of allegations of corruption within the judiciary, accusations made in some audio and video leaks circulating on social media, and concerns regarding alleged participation of judges in political matters, etc. At a time when people’s trust in the judicial system has eroded and international ranking is among the lowest, the task of judicial reform is undeniably urgent and daunting.
However, this objective can only be achieved through focus on merit-based appointments and establishment of a rigorous accountability framework with adequate checks and balances.
(Huzaima Bukhari & Dr Ikramul Haq, lawyers and partners of Huzaima, Ikram & Ijaz, are Adjunct Faculty at the Lahore University of Management Sciences (LUMS), members of the Advisory Board and Visiting Senior Fellows of Pakistan Institute of Development Economics (PIDE). Abdul Rauf Shakoori is a corporate lawyer based in the USA and an expert in ‘White Collar Crimes and Sanctions Compliance’)
Copyright Business Recorder, 2023