As Chief Justice Pakistan (CJP) Umar Ata Bandial doffs his robes today, he joins a long list of chief justices with contentious legacies. Almost as a parting shot, on Friday, a three-member bench headed by CJ Bandial restored corruption cases against public office holders in a majority 2-1 verdict, approving PTI Chairman Imran Khan’s petition challenging amendments made to the NAB ordinance by the PDM government last year. This verdict was not a surprise for many in the legal fraternity who had ‘expected’ Justice Bandial to strike down some amendments to the NAB laws before he retired. This verdict, too, will be remembered as part of the outgoing chief justice’s tenure that saw a heavy judicialization of politics. One measure of the legacy could be the announcement by the Pakistan Bar Council (PBC) on Thursday that they would boycott the traditional farewell dinners in honour of the outgoing CJP Bandial “as a protest”. At one of his earlier farewell dinners hosted by the Supreme Court Bar Association (SCBA) on Wednesday, CJP Bandial had taken exception to the opinion that he was leaving behind a divided superior judiciary and said that the only difference that exists among the judges is whether constitutional cases can be heard directly in the apex court or not and that there was "no contradiction" among them on constitutional principles.
But to many these words may ring hollow. For the past year at least constitutional and legal experts have pointed out that Pakistan’s top court under CJ Bandial was not just divided but that the rather public and vocal airing of differences between the apex court judges has left a bitter judicial legacy. However – and this is important – all this has not happened in a vacuum; the past decade has been more or less the same, with most former chief justices having left similar ‘political’ and controversial legacies. This perception about the outgoing chief justice may or may not have merit but a recent statistical study of the decisions of the Supreme Court from December 31, 2016 to June 30, 2023 – a period covering the entire tenures of the last three chief justices (and all but three months of the incumbent chief justice’s tenure), by three eminent legal minds and published in this paper, shows why the term ‘like-minded judges/benches’ has been thrown around so often by political parties and bar councils in the recent past. Going by the study, it would seem that when it came to favouring some judges over others, the perception may not be entirely wrong.
The incumbent chief justice’s legacy – ‘tarnished’ according to some – may be remembered for a bitterly polarized judiciary where judges wrote scathing notes, how the top court was dragged into political disputes, and how its judgements – sometimes contradictory – led to a perception that one political party was being ‘facilitated’. A case in point could be the now controversial Article 63A verdict whose reinterpretation, say legal minds, changed the entire political situation in Punjab last year. But, while the ‘political’ part of the CJ Bandial court may divide opinion, the outgoing judge is also leaving behind a reputation of being an otherwise ‘soft-spoken’ judge known for his competence and legal acumen and who perhaps was left grappling with matters that became “a trying contest” in his own words. The Supreme Court as it stands right now makes it all the more important for incoming Chief Justice Qazi Faez Isa to work at bridging the differences and returning the superior judiciary to the loftier status it has held previously. More judicial reforms and less judicialization of politics may be the best way forward.