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A landmark verdict

The verdict of the Supreme Court of Pakistan on Oct 10 to sustain the controversial SC (Practice and Procedure) Act, 2023 is remarkable and unprecedented by all means. The SC ruling has effectively curtailed the personal powers of the chief justice of Pakistan (CJP) in matters of high procedural significance.

Though there are some analysts and observers who fear the verdict could give rise to an increased interference of extrajudicial forces into the judicial space of the apex court; such fears are perhaps out of proportion and unfounded. No one expected the verdict to be unanimous as the arguments and comments – sometimes unduly lengthy – reflected that at least one-third of the full bench was not entirely happy with the way the CJP was leading the proceedings of the case. Most observers expected a majority verdict rather than a unanimous one and ultimately that was the outcome.

The law under discussion envisions the formation of a committee of three judges to form benches on cases involving constitutional matters of public importance. Its constitutionality was under question and the previous chief justice Umar Ata Bandial had resisted the formation of a full bench to hear this case of immense importance. Unfortunately, the reluctance to form full benches was too blatant and without any compunctions for the past many years. Chief Justice Qazi Faez Isa has done away with that undesirable practice and one of his first actions was to enlarge the bench to include all SC judges.

By declaring a major portion of the law ‘constitutional’, the Supreme Court has done a great service to this nation and to parliamentary democracy that received numerous jolts in the past from both generals and judges. Interestingly, the top court upheld a section of the law that envisages the right to appeal in future cases, while rejecting the right to appeal in cases already decided. Another appreciable aspect of the case was that the verdict came after all 15 judges of the SC conducted just five hearings on petitions challenging the practice and procedure law.

The credit goes most of all to the chief justice who guided the proceedings in a highly decent and professional manner that has become a rarity in this country lately. The nation has endured chief justices who loved to cross all boundaries of decency and professionalism while demonstrating their preferences and ego-boasting actions – both verbal and non-verbal. In this case, the chief justice managed to regulate the interruptions from some ‘like-minded’ judges who were a regular feature on most benches in the past few years, mostly under the previous chief justice.

Streaming the proceedings live on television was another first that the CJP has introduced, showing a high level of confidence in his judges and the audiences across the country. Had he wanted a unanimous decision, he could have easily formed a shorter bench of his own preferred judges to elicit the desired verdict, but he showed utmost grace to include all judges without barring those who were clearly hostile towards him and his wife in the past. To a majority of democracy-loving people in the country, this decision has come as a welcome step.

For any functioning democracy worth its name, it is significant to democratize the workings of the judiciary itself, especially at the highest level. One reason democracy has not been able to take root in Pakistan is that certain quarters – especially the judiciary and security establishment – have not shown due respect to the will of the people as exercised by their elected representatives. That means that parliament has craved for the respect it deserved, but hardly ever received it. The legislature that represents the people has mostly received kicks and pushes and not a gentle touch that is vital for nurturing any institution of public representation.

The specific clause concerning appeals against past judgements will not affect Nawaz Sharif as in a surprise count, eight out of 15 judges voted against the law’s application on previous verdicts. Overall, the Supreme Court under the leadership of the CJP has improved the image and reputation of the apex court as it is now appearing more transparent than ever. In a way, a majority of the Supreme Court judges has now recognised the supremacy of parliament and its prerogative to enact laws that it deems fit for the country including for the judiciary.

True to its credentials, the PTI leadership once again has tried to give the verdict a spin by saying that the verdict is a disappointment for a political party. The PTI during its 45-month government consistently appreciated the ‘like-minded judges’ who had no qualms in delivering verdicts that appeared to be partisan and lacked transparency. It was the PTI government that initiated a reference against the judge who is now the chief justice of Pakistan and who endured all sorts of indecent remarks about his person and family. Now the PTI is trying to appear innocent in this entire game.

Chief Justice Isa did invite potential risks by forming the full bench as the verdict could go against his declared stance of supporting parliamentary supremacy. He could have enjoyed his authority to continue the one-man show that in the past many chief justices preferred. Under the old system, the CJP did have the privilege to single-handedly form benches but Justice Isa gladly agreed to share power with other senior most judges in this matter. This has dealt a blow to all aspiring chief justices who would have liked to enjoy the powers as the first among equals.

The live telecast of the proceedings has also exposed the inclinations of various judges in terms of sharing of powers or otherwise. Some judges were openly acrimonious against the law under discussion and wanted it scrapped. Frequent interruptions by some judges in the arguments derailed the train of thought of the lawyers; the resultant bickering was unpleasant but informative and instructive to many. At times it appeared that some judges were openly trying to undermine the authority of the CJP but he himself took it lightly and with dignity, for all to admire and appreciate.

It is worth recalling that in the history of Pakistan perhaps former president Asif Ali Zardari is the only other example in which the head of state willingly transferred his powers to the prime minister, knowing full well that he was not going to relinquish his office of the president and would not become prime minister to enjoy or exercise the transferred powers under the 18th Amendment to the constitution. Both Isa and Zardari have shown a certain level of comfort with what they have done by sharing or surrendering their powers.

Justice Isa has failed in his attempt to approve the grant of retrospective right of appeal but since it is a majority decision, so be it. The previous government had made amendments to Section 232 (Disqualification on account of offences) of the Election Act, 2017. The amendment limits the disqualification period under Article 62(1)(f) to five years. That would have allowed candidates such as Jahangir Tareen and Nawaz Sharif to contest elections in 2024. The majority verdict against this amendment has dashed all hopes of these gentlemen to be MPs once again.

Former CJP Umar Ata Bandial had authored the judgment that holds the disqualification under Article 62(1)(f) for life. Now there is some confusion as the SC has not declared the entire amendment as unconstitutional so technically Nawaz Sharif may still be eligible to contest elections. Unless the SC takes up the petition of the Pakistan Bar Council challenging the lifetime disqualification of parliamentarians, the confusion will remain intact. For the time being it is hard to identify the real beneficiary of the verdict but for sure parliament has been slightly strengthened by this decision.

Dr Naazir Mahmood, "A landmark verdict," The News. 2023-10-15.
Keywords: Political science , Political issues , Political party , Transparency , Democracy , Nawaz Sharif , CJ Qazi Faez Isa , Pakistan , PTI