A united or divided court?

Considering the medium-term prospects for superior courts

A united or divided court?


he year, so far, has witnessed an openly divided Supreme Court, disagreeing not just in opinions but also on what constitutes a majority opinion. The senior puisne judge has taken to writing letters to the chief justice of Pakistan (CJP) asking him to comply with constitutional requirements. These private letters have made their way into the public domain. Will the divisiveness and washing of dirty linen in public continue? What are the prospects for the court in the medium term?

One of the key areas which will come into focus in the coming days is the powers of the CJP. The legislature initiated an attempt to transfer the absolute power of the CJP regarding bench constitution and suo motu notice (the so-called one-man show) to a committee of the three most senior judges. Before it could take effect, an eight-member bench of the court suspended the law. The timing of the legislation leaves little doubt that the motivation behind it was to try and undo certain adverse judicial decisions.

Traditionally, the courts do not delve into the minds of legislators when examining a law. The law is examined on its own terms to see if the parliament had the competence to legislate on the subject matter and to ensure that there is no violation of fundamental rights. If these tests are passed, the courts should not interfere. If there is a bad law motivated by what are regarded as partial political interests, the proper remedy is for the legislators to be changed through an election and for the law to be repealed by the new legislature. The courts are not there to save the public from unwise or what some may regard as self-interested legislators. Nor are they there to second guess legislative motivation.

There is an application pending on behalf of the Federation for the constitution of a full court to hear this important case. Some of the judges observed during the hearing that this was just an ordinary case challenging the vires of a law. “Why is a full court needed?” they queried. The unspoken reason was clear to all. The difficulty was not that eight judges had been selected by the CJP. The difficulty was why these eight were chosen and the seven excluded. The impression created was that those who had expressed different views from the CJP had been left out from the bench. That impression was endorsed by an unprecedented unanimous ad interim order on the first date suspending a law that was yet to take effect.

Greater transparency in bench composition and exercise of suo motu powers has been the subject of discussion for a while. Even if this cannot be done by the parliament for partial political reasons, it seems that all stakeholders agree that it can be done by the court itself through its rules. On September 17 this year, the CJP will retire. The new CJP, Qazi Faez Isa, will have an opportunity to summon a full court meeting to amend the Rules to cater for this. If this happens, it will be one of those rare moments in our history where a public office holder has given up absolute power vested in his office based on principle.

The second area of likely debate in the medium term relates to judicial appointments. There are two vacancies at the Supreme Court level. Different positions have been taken by decision makers on the criteria to be adopted in selecting the new judges. There will be an opportunity to engage with the seniority versus merit debate relating to judicial appointments. Those favouring seniority do so on the basis that currently there are no transparent criteria to determine merit. The Judicial Commission of Pakistan, headed by the new CJP, will have an opportunity to develop such criteria and make new appointments less controversial.

How will Faez Isa fare as CJP? There are two main areas that could lead to controversy. The first of those is his relations with judges who did not support him during the hearing of a reference against him. Will he be a leader of his institution or of his supporters in the institution? For the sake of us all, it is to be hoped that he can bring the institution together rather than divide it further.

The second potential source of controversy is his involvement in cases where the PTI or Imran Khan (whether in an official capacity as part of the government or opposition or in a personal capacity) is a litigant. Both he and his wife have openly expressed strong views during the reference litigation against the then prime minister Imran Khan and his government. Imran Khan has since conceded that the reference was a blunder. Given this history, will Imran Khan and the PTI accept adverse decisions by a bench headed by Faez Isa without questioning the motives behind the decision?

The use of technology by the court in respect of hearings may also be considered. There have been calls for televising or live streaming important cases in the interest of transparency. Open justice is an important principle. The impact on the quality of decision making and the integrity of the judicial process will need to be considered. If they know that proceedings are being broadcast, will the judges and the counsel play to the gallery and be reluctant to take unpopular positions? These are important considerations which will have to be balanced. There should certainly be a full transcript maintained of hearings which records all submissions and oral arguments. The transcript should be accessible to the public.

During the Iftikhar Chaudhary era the court was united with very little internal dissent. There was some poor jurisprudence but strength in unity. Differences of opinion within institutions are not a sign of weakness. But casting aspersions on the integrity of your colleagues or openly criticising their conduct (as opposed to their judicial opinions) undermines the whole institution. A strong and credible Supreme Court is an asset for us all. This does not require unity of views. It does require unity of purpose. It remains to be seen whether in the medium term the court can rediscover this.

The writer is an  advocate of the Supreme Court of Pakistan. He can be reached at  ahmadhosain@icloud.com

A united or divided court?