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Is the Supreme Court of Pakistan on trial?

In this article, previously published at The Nation under the title, "Trial of the Supreme Court", renowned lawyer Saad Rasool talks about the ongoing crisis in the Supreme Court of Pakistan pertaining to Justice Qazi Faez Isa’s review petition. He weighs the merits and demerits of the ongoing conflict on the current case and its impact on future cases in the highest court of Pakistan.

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The honourable Supreme Court of Pakistan is hearing Justice Qazi Faez Isa’s review petition. And the happenings in court, as reported, are scarcely believable. During the course of hearings, reportedly, several members of the bench, including the presiding judge, honourable Justice Umar Ata Bandial, have claimed that this case is, in part, a “trial of the Supreme Court”. In the circumstances, it is important to assess how the honourable Supreme Court is faring in its trial.

Let me start by clarifying that I have not had the privilege of attending the ongoing proceedings of the Court. This piece, as a result, is based on publicly available material and reporting, concerning the case. And this is important: the article is not concerned with the precise legal arguments being advanced by the respective parties in court; instead, it focuses on the ‘impression’ or the ‘image’ of the Court, which is on trial, that these proceedings have projected among the people at large.

From the very start, this has been a case of unprecedented controversy, which has now resulted in a tangible ‘split’ within the honourable Court. Not a split of judicial verdict or interpretation—no. But a split of the Court itself, with reports of infighting between the honourable Judges, during open Court hearings.

Read more: Judicial impartiality paramount to serving justice

In summary—without getting into legal details—the case concerns a reference against honourable Justice Isa, emanating from declaration of foreign properties owned by his family members. Justice Isa challenged the reference, which was subsequently struck down by a 10-member bench of the honourable Supreme Court.

However, the honourable Court, while ‘quashing’ the reference, directed FBR to look into the matter, and accordingly provide a report to the Supreme Judicial Council for its consideration. Justice Isa filed a review petition against this order of the honourable Court, which is being heard at present.

Importantly, as reported, during the course of the initial challenge, as well as the incumbent review proceedings, honourable Justice Isa has repeatedly claimed that the entire exercise is being conducted in mala fide manner, at the behest of certain State agencies, who have been irked by Justice Isa’s Faizabad dharna judgment.

In this regard, Justice Isa has, at various instances, directly leveled allegations against the President, the Prime Minister, several Cabinet members, State institutions, and even members of the Supreme Judicial Council (including former Chief Justices), for being hand-in-glove in this conspiracy against him. This, as could be expected, has created much acrimony between the honourable Judge, and other functionaries of the State.

Despite such acrimony outside the courtroom, members of the bench, under the able and erudite stewardship of Justice Bandial, have conducted themselves (and the case) in a manner that is befitting the honour and prestige of the highest Court of our land. Such comity and poise, however, dissipated this past week, providing people a window into the deep and disconcerting division between member of the bench.

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To this end, it is important to point out that the review petition has recently gained urgency with the bench, in light of the fact that one of the judges—honourable Justice Manzoor Malik—is scheduled to retire at the end of the month. If the review petition is not decided prior to Justice Malik’s retirement, the bench would have to be constituted anew, and the review would have to be heard afresh.

Faced with this deadline, the honourable bench has been urging all parties to make concise arguments. To this end, as reported, on Thursday, while the Additional Attorney General Amir Rehman was arguing his case, Justice Isa repeatedly taunted the government’s counsel, urging him to ‘shorten’ his arguments.

At the feet of such interruptions, keeping in view the paucity of time, several members of the honourable bench urged Mr. Rehman to keep his arguments concise, instead of reading detailed passages from the record and relevant judgments.

In this regard (as reported), at one point, while honourable Justice Maqbool Baqar was urging the government’s counsel to be precise in his arguments, another brethren judge, honourable Justice Munib Akhtar, addressed a question to the counsel.

This irked Justice Baqar, who (reportedly) chastised Justice Akhtar for asking the question while Justice Baqar was still addressing the counsel. In his defence, Justice Akhtar claimed that being an equal member of the bench, he is entitled to ask the counsel a question.

On which Justice Baqar (reportedly) got further agitated, claiming that this was ‘too much’. Other judges immediately intervened to placate the court environment. However, that did not last for too long when, just a few minutes later, Justice Baqar again urged the government’s counsel to be precise.

At this, Justice Sajjad Ali Shah interrupted and asked the bench to allow the counsel to proceed with his arguments, failing which he would leave the hearing. In response, Justice Baqar also threatened to leave. Another similar exchange followed, after which Justice Baqar got up, prompting the entire bench to get up and reconvene after a short break.

Read more: Pakistan is being destroyed in a systematic manner, remarks Justice Faez Isa

This kind of ‘infighting’, for the lack of a better word (respectfully), during an open court hearing, is unprecedented in the honourable Supreme Court. It has laid bare the fragility of our justice system, and the egos at play behind the closed doors of judicial mystique. Those present in court claim that the heated exchange between the honourable Judges was only a shade away from the kind of partisan conflict we see on the floor of the Parliament.

So, in this context, what is the public verdict on this ‘trial of the Supreme Court’? How are the people of Pakistan, unconcerned with the legal nuances of Justice Isa’s case, viewing this matter? Well, a few observations, in this regard, seem inescapable.

One: it seems that Justice Isa is aggrieved of a system that the people of Pakistan are subjected to every day. A system that Justice Isa has been a part of. A system that he has presided over, in Balochistan, and elsewhere. A system that drags and ridicules the wife, daughter and other family members of the accused, every day.

How many times does the police ‘pick-up’ or browbeat family members, who are not a party to the case, in order to affect recovery from the accused? How many wives and daughters, across Pakistan, are dragged through our Courts every day, in cases that have no real nexus with them? How many times does the FBR, or the FIA, or even the Court, ask for family details that go beyond the ambit of the accused?

Was Justice Isa, and his sympathizers, oblivious to this undeniable facet of our justice system? Were members of the bench not incensed about it, while it was happening to other people? And are they simply enraged that this ‘system’ of justice and investigation, which gruels Allah Ditta every day, is now being used against one of their own?

Two: does any believe (anymore) that Justice Isa, even if he survives this reference, can function as an ‘unbiased’ judge of the court? This question has nothing to do with whether he is right or wrong. In fact, it may be evident that Justice Faez Isa is correct in his legal stance, and is being persecuted by the powers that be. But, correct as he may be, is he ‘unbiased’?

Can he, henceforth, ‘impartially’ decide cases involving the incumbent Prime Minister, or his cabinet members, or the Asset Recovery Unit, or the FBR, or other State institutions against whom he has publicly alleged mala fide? Better yet, should he? Will his future decisions and judgments, even if they are legally correct, carry the moral command of impartiality that is necessary for the Court? And if not, does the mere impression of bias or partiality—regardless of its truth—not vitiate the very foundations of law’s empire?

Three: most importantly, the proceedings of the honourable Court—especially with regards to crosstalk and conflict amidst members of the bench—have cast a long and deepening shadow over our project of justice. It has shown (respectfully) that judges on the bench, much like all other people in our society, are prone to individual preferentialism.

Would another counsel—an anonymous one—be permitted to address the Court in the manner that Justice Isa has? Would Allah Ditta’s family, if they decided to appear in the Supreme Court, be allowed the kind of liberties (in argument and decorum) that have been extended to Justice Isa and his wife?

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Is it not evident that certain members of the bench consistently ask questions that poke holes in the government’s case, while others do the same to Justice Isa? Are judicial temperaments and egos really so fragile that, in a matter concerning their fellow judge, there is open grouping and conflict in the bench? What’s next?

Will the honourable Court now split into two partisan groups? Those for judicial independence, versus those for judicial accountability? Those in favour of concise arguments, and others who believe in the right of advocacy? Those who view State institutions with suspicion, and those who fold in their favour?

No one can say, with certainty, how this case will be decided. In many ways, the legal outcome has now become irrelevant. Because, in the ‘trial of the Supreme Court’, the people of Pakistan seem to be reaching conclusions that may haunt the honourable Court moral authority for decades to come.

Saad Rasool is a lawyer based in Lahore. He has an LL.M. in Constitutional Law from Harvard Law School. He can be reached at saad@post.harvard.edu, or Twitter: @Ch_SaadRasool. This article originally appeared in The Nation under the title, “Trial of the Supreme Court” and has been republished with the author’s permission. The views expressed in this article are the author’s own and do not necessarily reflect the editorial policy of Global Village Space.

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