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Monday May 27, 2024

Situationer — Bandial’s retirement: A look at history of political engineering through selected judges and biased judgments

The state in which Justice Umar Ata Bandial is leaving the Supreme Court behind is considered the weakest and controversial apex judiciary in the country ever

By Wajid Baloch
September 16, 2023
Outgoing Chief Justice of Pakistan Umar Ata Bandial. — SC website
Outgoing Chief Justice of Pakistan Umar Ata Bandial. — SC website

KARACHI: Today is the last day of the service of Chief Justice of Pakistan Justice Umar Ata Bandial. Afterwards, Justice Qazi Faez Isa, who belongs to Balochistan, will become the CJP. But will he be able to restore the prestige of the Supreme Court after overcoming the divide persisting in the judiciary? At the moment, its judges, the people, and even politicians lack trust in the Supreme Court of Pakistan. The biggest reason behind this situation is that in addition to the role played by the establishment and its selected politicians in creating political and economic uncertainty in Pakistan, the judiciary also played quite a negative role in this regard. The judicial activism started during the tenure of former CJP Iftikhar Chaudhry has hit its peak. The Supreme Court of Pakistan during the tenures of the past four CJPs interfered in the political affairs to such an extent that Supreme Court judge Athar Minallah had to say: “Masses don’t have any confidence in the judiciary when people view judges as politicians who just wear the judge’s robes.” It is true that the difference between a judge and a politician has almost ended and in this regard former CJP Asif Saeed Khosa played his part while the outgoing CJP Umar Ata Bandial is largely to blame for this situation.

The state in which Justice Umar Ata Bandial is leaving the Supreme Court behind is considered the weakest and controversial apex judiciary in the country ever during the democratic regimes in the country. This was a Supreme Court whose chief justice heard the case against the very commission that was formed to probe into the audio of a phone conversation of his mother-in-law was leaked. This he did despite the clash of interest involved in this matter. The CJP ordered the suspension of the proceedings of the audio leaks inquiry commission and released a written order for responding to the objections raised against him. In his defence, he quoted Quranic verses.

But the matter doesn’t end here. Justice Bandial has become the only CJP in history who was charge-sheeted by his own brother judges as he faced the allegations of forming benches on the basis of his own likes and dislikes. At the same time, he was also accused of running the judiciary like a “one-man show”. He also faced allegations of attempting to rewrite the constitution and interfering in parliamentary affairs. Justice Bandial also faced the allegation of sidelining senior judges Justice Qazi Faez Isa and Justice Tariq Masood. Both the judges conceded facing such a situation in their judicial notices. For all these reasons, let’s start reviewing the controversial tenure of Justice Bandial.

Just a day before the expiry of his tenure, CJP Justice Bandial announced the judgment on the petition filed by Chairman Pakistan Tehreek-e-Insaf Imran Khan. He declared null and void up to 90 per cent of the amendments to the NAB Ordinance passed during the tenure of the past government for regulating the conduct of the National Accountability Bureau. This judgment to annul the NAB Ordinance amendments was a 2-1 majority order. The majority order was written by Justice Bandial and Justice Ijaz Ul Ahsan while the dissenting note was written by Justice Mansoor Ali Shah. The PTI has become the major beneficiary of this judgment that is also likely to cause damage to former PDM parties, which previously ruled the country. The Pakistan Muslim League-Nawaz and the Pakistan Peoples Party are at the top of this list. This is because the corruption cases filed against politicians of these two parties, which were earlier quashed, could now be reopened. Political analysts believe that through this judgement, just a day before his retirement, Justice Bandial has given a silent message to these parties, which kept up political and legal pressure on him. The legal validity of this masterstroke played by Justice Bandial on the last day of his service could be determined on the basis of reasons for this judgment to be given in the detailed order that will be issued later. If a review petition is filed against this judgment, then it will be fixed before the new CJP Justice Isa for hearing. Justice Isa is the judge who had earlier questioned the partial conduct of Justice Bandial, and later on this situation was became so intense that the Supreme Court was clearly divided into two camps during the entire tenure of Justice Bandial. The first controversy related to Justice Bandial emerged when a bench headed by him ordered conducting investigations on the basis of the presidential reference filed against Justice Isa at the behest of the establishment and former prime minister Imran Khan. The FBR was given the task to probe into the allegations contained in the presidential reference. The last controversy of his tenure is related to the formation of the bench to hear the case against military courts. Two senior judges of the Supreme Court, including Justice Isa, even termed the formation of the bench illegal. The differences within the Supreme Court became so serious due to this controversy that the apex judiciary of the country was clearly divided into two camps. The government and the Supreme Court came face to face. A debate was started in the country to limit the unbridled powers of the CJP. The most interesting aspect is that this controversy didn’t emerge during the hearing of the case against the military courts as the reality is that this controversy emerged three years back.

Justice Bandial had taken oath as Acting Chief Justice on August 20, 2021 because then Chief Justice Gulzar Ahmed was abroad and at that time he was administered the oath by nobody else but Justice Qazi Faez Isa. This was time when former Director General ISI Faiz Hameed had been accused of interfering in the judicial proceedings and Justice Qazi Faez Isa was the target of the establishment.

Surprisingly, on the next date after becoming Acting CJ on August 21, Justice Bandial suspended the suo motu proceedings initiated on the application of journalists and constituted a larger bench under his supervision to deal with the matter. This decision decided the future line of action of the Justice Bandial.

This larger bench included then Acting Chief Justice Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Mohammad Amin Ahmed and Justice Mohammad Ali Mazhar. and the bench after hearing the proceedings had declared the suo moto proceedings initiated by Justice Qazi Faez Isa as unconstitutional and without jurisdiction.

Through the full bench order, all the powers and authorities were confined to the chief justice for taking suo moto notices and this was going to benefit Justice Bandial.

These proceedings escalated the ongoing dispute between Justice Bandial and Justice Qazi Faez Isa. On March 29, an SC two-member bench comprising Justice Qazi Faez Isa and Justice Qazi Aminuddin Ahmed ordered halting the suo moto proceedings under Article 184 (3) of the Constitution until the SC made rules for dealing with cases under this article.

In April this year, the federal government had promulgated Supreme Court Practice and Procedure Act under which the powers of the Chief Justice to take suo moto notice and constitute benches have been divided among the CJP and two other senior judges of the SC. However, the chief justice constituted an eight-member bench and suspended the operation of this Act even without the approval of the president.

Interestingly, the matter relating to the powers of CJ is pending before the larger bench and the law is in fact suspended. Later, the SC also constituted a nine-member bench to hear petitions against military trial of civilians on a petition of Imran Khan and others, and surprisingly Justice Sardar Tariq Masood and Justice Qazi Faez Isa were included in the bench who were earlier not included in other political nature cases.

Justice Sardar Tariq Masood and Justice Qazi Faez Isa questioned the constitution of the bench and said that they were not consulted about the constitution of the bench and observed that first the petitions relating to Practice and Procedure Act should be heard and decided.

Chief Justice however constituted another seven-member bench excluding Justice Sardar Tariq Masood and Justice Qazi Faez Isa. The seven-member bench also included Justice Mansoor Ali Shah and Justice Yahya Afridi and then government raised objection to the inclusion of Justice Mansoor Ali Shah, who was a relative of a petitioner former Justice Jawwad S Khawaja. Later, Justice Mansoor Ali Shah recused from the bench voluntarily and noted in his separate note that he joined the bench with some reservations as there was a specific pattern for constitution of benches and full court was not constituted to hear such important constitutional matters and special benches were constituted with some specific judges.

Justice Shah observed that this was done in public importance cases as lack of constitution of full court had affected the authority of the court and legal sanctity of the decisions. Justice Shah was of the view that until the SC issued any judgment on the Practice and Procedure Act, the full court may hear the cases initiated under Article 184 (3) of the Constitution.

But the Chief Justice Bandial brushed aside the reservations of the other members of the bench and promoted the tradition of constitution of specific benches.

Justice Yahya Afridi, who is still part of the bench hearing the petitions against military trials of civilians, also expressed the same reservations and observed that full court may be constituted to hear such petitions as in the present scenario if the present bench passed any order it would not get the legal sanctity which it deserved. He therefore requested the CJ to form the bench again and send these cases to full court. But the chief justice ignored the observation of Justice Afridi and continued the proceedings.

The important aspect was that CJ Bandial, who was part of such specific benches which delivered controversial judgments in political importance cases, constituted such specific benches after becoming chief justice and these benches also delivered judgments which could be defended neither by him nor by likeminded judges.

Let’s review some other facts. The Supreme Court had issued a controversial judgment in April 2018 to oust the former prime minister Nawaz Sharif from politics. This decision was that if a person was found disqualified under Article 62 (1) (f) of the Constitution, his disqualification would be for life.

The bench that delivered this controversial judgment comprised then Chief Justice Mian Saqib Nisar, Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Azmat Saeed and Justice Sajjad Ali Shah.

Likewise, the SC had also issued a controversial judgment in July 2018 on a fund for the construction of Diamer Bhasha and Mohmand dams. The bench that gave that controversial decision included Justice Saqib Nisar, Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar. In 2017, the SC had declared Imran Khan as Sadiq and Ameen, and that bench included Justice Saqib Nisar, Justice Umar Ata Bandial and Justice Faisal Arab.

Apart from this, a request was filed regarding the disqualification of Imran Khan’s close associate Zulfi Bukhari in December 2018 but the Supreme Court rejected this request and the members of this bench were Justice Saqib Nisar, Justice Umar Ata Bandial, and Justice Ijazul Hassan.

In August 2021, the Supreme Court ruled that only the Chief Justice can exercise suo motu powers. The bench that made this controversial decision included Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Qazi Amin Ahmed, and Justice Muhammad Ali Mazhar.

In March 2021, a presidential reference was filed, and the Supreme Court was asked for an opinion on whether the Senate elections should be held through secret ballot or open ballot according to the constitution. The Supreme Court ruled that the Senate elections should be held through a secret ballot. However, in the bench that made this decision, there were differences of opinion, with Justice Gulzar Ahmed, Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Mushir Alam, and Justice Yahya Afridi in favour of the majority decision, while Justice Yahya Afridi had dissented and referred back the presidential reference.

Similarly, in April 2022, the Supreme Court unanimously declared the dissolution of the National Assembly as unconstitutional, and the bench included Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Miankhail, and Justice Jamal Mandokhail. Then in May 2022, the Supreme Court took suo motu notice of the government interference in the prosecution branch and this notice was taken Justice Umar Ata Bandial on the recommendation of a judge, and a bench was formed in this regard, including Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Mazhar Akbar Naqvi, and Justice Muhammad Ali Mazhar.

Similarly, in May 2022, a presidential reference was filed demanding opinion that whether the votes casted against the party line would be counted or rejected. The Supreme Court, in this regard, made a controversial decision and declared that the votes casted against the party line would be rejected. The bench that made this decision was inclusive of Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar, while Justice Mazhar Alam and Justice Jamal Mandokhail wrote notes of dissent likening this decision to rewriting the constitution.

In May 2022, a case of contempt of court was filed against the PTI Chairman regarding the PTI’s non-compliance with the Supreme Court’s orders about protests at D-Chowk. The bench that handled this matter included Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Mazhar Akbar Naqvi, and Justice Yahya Afridi. Justice Yahya Afridi made it clear that Imran Khan could be charged with contempt of court, but the other members of the bench refrained from pursuing the matter, and to date, no decision has been reached on this case.

In July 2022, the Supreme Court declared the role of the Deputy Speaker of Punjab as null and void and accepted the verdict in favour of Pervez Elahi, who was voted against party lines, making Pervez Elahi the Chief Minister of Punjab. The bench that made this decision included Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar.

In March 2023, the Supreme Court took suo motu notice to set the date for elections in Punjab and Khyber Pakhtunkhwa and formed a bench that included Chief Justice Umar Ata Bandial, Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Ijazul Hassan, Justice Mazhar Akbar Naqvi, Justice Jamal Mandokhail, Justice Yahya Afridi, Justice Mansoor Ali Shah, and Justice Athar Minallah.

Furthermore, in April 2023, the Election Commission challenged the decision to set the election date until October 2023. The Supreme Court declared the Election Commission’s decision null and void and set the election date for May 14 in Punjab. However, the government did not implement the decision. The bench that made this decision included Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar.

Then in April 2023, the Supreme Court suspended the Supreme Court and Prosecutor Act enacted by the government, and the bench that made this decision included Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Mazhar Akbar Naqvi, Justice Ayesha Malik, Justice Hassan Rizvi, and Justice Shahid Wahid. In April 2023, the Supreme Court also issued a decision allowing political parties to agree on an election date through dialogue, and the bench that issued this decision once again included Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, and Justice Munib Akhtar.

In May 2023, the Supreme Court nullified the notification of the Audio Leaks Commission headed by Justice Qazi Faez Isa. The commission was formed to investigate audio leaks. The bench that issued this decision included Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, Justice Munib Akhtar, Justice Hasan Rizvi, and Justice Shahid Wahid.

Then, in June 2023, the Supreme Court reserved its decision to declare the government’s Judicial Judgment and Review Order as illegal, and later the same bench declared it null and void. This bench also included Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar.

This means that some specific judges formed benches out of 17 judges of the Supreme Court in most of the cases involving important political matters. Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar were prominent of them.

Recently, an investigation published in The News revealed that in the past seven years and during the tenure of four Chief Justices, it emerged by examining 1,957 reported cases that out 1,957 cases, in 134 important political cases, Justice Ijazul Hassan was part of the bench hearing the highest number, 63 cases. Justice Umar Ata Bandial heard 52 cases, Justice Munib Akhtar heard over 22 cases, and Justice Qazi Faez Isa 11 cases.

Justice Ijazul Hassan was also part of the bench among the judges hearing the remaining 1,823 non-significant political cases, with a total of 372 cases heard by Justice Ijazul Hassan. Justice Umar Ata Bandial stood second with 315 cases, Justice Mansoor Ali Shah with 302 cases, Justice Sardar Tariq Masood with 241 cases, and Justice Faez Isa with 199 cases.

In the past seven years, the judges presiding over the most important political cases among the Supreme Court’s judges were Chief Justice Umar Ata Bandial, Justice Ijazul Hassan, and Justice Munib Akhtar. The senior-most judges had less involvement in this regard.

These likeminded benched made such decisions which they could not defend later. For examples, in October 2022, CJ Umar Ata Bandial head an application under Article 62-1(F) of the constitution against PTI leader Faisal Vawda’s lifetime disqualification and gave remarks that Article 62-1(F) was draconian law and they would hear the case carefully. The important thing is that CJ Umar Ata Bandial declared Article 62-1(F) a draconian law, but under this article the judgment for lifetime disqualification was written by Justice Umar Ata Bandial himself. Later, he declared it draconian when it was applied on a PTI leader.

In anticipation of a looming no-confidence motion against former Prime Minister Imran Khan and defections from the former ruling party, President Dr. Arif Alvi submitted a reference to the Supreme Court, requesting an interpretation of Article 63 of the Constitution, which pertains to the disqualification of parliamentarians on grounds of defection.

On May 17, 2022, a larger bench led by Chief Justice Umer Atta Bandial handed down a 3-2 split verdict on the presidential reference, ruling that the votes of defecting lawmakers will not be counted.

However, Bandial during the hearing of the reference on March 24 had remarked that not counting a vote that has been cast during the no-trust proceedings against the prime minister would be “contemptuous”. This contradiction outlines the fact that the chief justice and other likeminded judges came up with new legal justifications with changing times and circumstances, which not only dented the credibility of the apex court but also had an adverse impact on the country’s politics.

During Justice Bandial’s tenure as the country’s top adjudicator, the Supreme Court heard a case that stands as a striking example of judicial intervention. For the first time in history, four judges of the Supreme Court differed with their three other colleagues, asserting that the majority decision in the case was theirs, while another faction comprised three judges led by the Chief Justice that claimed that they held the majority position and to this day it remains clear as to which group actually constituted the majority decision in that case. This has not been proven to date which of the decision was the majority decision.

In this instance, Justice Bandial not only saw his own writ questioned within his own court but the government refused to accept the Supreme Court’s ruling.

On February 16 this year, during the proceedings of a case related to the suspension of Lahore’s police chief, Ghulam Mahmood Dogar, Justice Ijazul Ahsan and Justice Mazahar Ali Naqvi unexpectedly voiced their concerns about the potential delay of elections in Punjab. This led to the matter being referred to the Chief Justice for suo motu notice, which raised questions about how an entirely different issue was brought up in the case.

Subsequently, on February 22, Chief Justice Bandial constituted a nine-member bench under his leadership. This bench included Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahir Naqvi, Justice Jamal Mandokhel, Justice Muhammad Ali Mazhar, and Justice Athar Minallah.

When the case was heard on February 24, political parties including PML-N, PPP and Jamiat Ulema-e-Islam expressed their reservations about the inclusion of Justice Ijazul Ahsan and Justice Mazahir Naqvi and demanded their recusal. Both eventually recused from this bench. Later, Justice Yahya Afridi also declared these applications inadmissible, after which Justice Umar Ata Bandial constituted a 5-member bench. Justice Yahya Afridi and Justice Athar Minallah were not included in that 5-member bench and then three members of this 5-member bench, including CJP Umar Ata Bandial, Justice Muneeb Akhtar and Justice Muhammad Ali Mazhar, ordered holding elections in Punjab on May 14, 2023.

Justice Mansoor Ali Shah and Justice Jamal Mandokhel rejected the petitions observing that together with the dissenting notes of Justice Athar Minallah and Justice Yahya Afridi, the majority decision was 4 to 3, which was binding on them all. Justice Athar Minallah agreed with the decision of Justice Mansoor Ali Shah and Jamal Mandokhail. In his note, he said, “I also had the honour of reading the detailed reasons of Justice Mansoor Ali Shah and Justice Jamal Mandokhel, and agree with their opinion, particularly regarding the final outcome of the petitions and the suo motu assumption of jurisdiction by a majority of 4 to 3 because this was the understanding in the meeting held in the anteroom on February 27.” The three judges, headed by Chief Justice Umar Atta Bandial, kept saying that the majority decision was theirs, while on the other hand the four judges said that the 4:3 decision was theirs and the judges were excluded from the bench without telling them. This controversy further damaged the writ of the Supreme Court to the extent that the political leaders took advantage of it and openly said that they will not accept the decisions of the Supreme Court. Now it has to be seen whether the newly appointed Chief Justice Qazi Faiz Isa can regain the trust of the people by restoring the lost writ of the Supreme Court or not.