An unnecessary controversy

It should be a matter of much consternation that our superior judiciary has made the news so consistently the past few months. In the most recent case, a detailed 30-page note written by Senior Puisne Judge Justice Qazi Faez Isa related to the nine-member bench hearing petitions against the trial of civilians in military courts was removed from the Supreme Court (SC) website on Friday – the same day it had been uploaded. This is not the first time this has happened – at least to Justice Isa. In April this year, a dissenting note he had written, and which was uploaded on the SC website – was also removed within a day or so. In the note written on Friday, Justice Isa has explained why he does not consider the nine-member bench hearing arguments on petitions regarding the trial of civilians in military courts a valid bench and why the Supreme Court Practice and Procedure Bill, 2023 has to be resolved first before any new benches can be constituted. The senior judge – who is all set to be the new chief justice of the country – has said that under the Practice and Procedure Bill, a bench in the SC has to be formed by a committee constituting the CJ and the next two senior-most judges of the apex court. And that not only does the SC Practice and Procedure Bill stand suspended, no date has been set to hear the matter either.

When the petitions regarding trial under military courts were announced, many a legal expert had already predicted that the chief justice would now finally include Justice Isa in this bench despite having had a tendency to overlook him while making benches related to political matters. It had also been thought that since Justice Isa had categorically stated that he would want a resolution of the Practice and Procedure Bill before leaving chamber work, we could see him refusing to sit on the bench. Legal experts are of the opinion that Justice Isa’s reasoning for leaving the nine-member bench without recusing himself is valid. They also reason that this is hardly about the subject of the petitions being heard in the Supreme Court but about the fact that he has said that no bench formation is possible without taking into account the SC Practice and Procedure Bill.

In the centre of this whole debate lies the Supreme Court Practice and Procedure Bill, which stands suspended for now. It is not that tough to understand that the present quagmire within the SC is a result of the delay in taking up this important law. That the nine-member bench for the military courts petitions was formed without consultation or addressing the elephant in the room is difficult to explain logically. Some experts are of the opinion that had this issue been resolved among the judiciary first, a larger bench could have given a landmark judgment and addressed many important issues in the process. But as has now become an unfortunate regular occurrence now, benches become controversial while the issue at hand remains unresolved.

Justice Isa’s note highlights what is wrong with the judicial process and how arbitrary decisions have created a dysfunctionality of sorts. For many years now, lawyers, bar councils and even judges have noted that the suo-motu powers and bench-formation powers of the chief justice have to be regulated so that the independence and impartiality of the judiciary does not come under question. When the government finally moved a bill to do this, there was a preemptive strike from the highest office of the court, something that was criticized by many. As some legal experts have pointed out, the SC is not just the CJP but the entire judges of the top court. And on the face of it what this bill is trying to do is to empower the whole of the SC, not one individual as has been the case till now. In the long term, this will only serve the case of justice while also clearing away some of the controversy that has come to be associated with the office and stature of the chief justice of the highest court of the land. With just a few months remaining for his tenure to end, it would be prudent if CJ Bandial resolved this issue once and for all.