Two pieces from Dr Hamid Hussain on the higher judiciary in Pakistan. Well worth a read. Third piece is awaited.
What follows was written by Dr Hussain.
Societies in general are becoming polarized and Pakistan is no exception. In times when main source of information is tweets, face book posts and a vlog by a youtuber, no one has the time or inclination to try to get information. Everyone picks his own set of facts that fits into his pre-conceived idea. Facts are not shaping the opinion but it is the other way around where facts are adjusted to one’s opinion.
Judiciary has emerged as an important player in the power play. In the last few months, I have made an attempt to write about the subject that was a new ground for me. I got educated and enlightened by many well informed folks. This is first of the three part series on the subject matter. Only for those interested in the background of unfolding events.
“Neither to laugh; nor cry
Just to understand” Spinoza
“The Supreme Court, of course, has the responsibility of ensuring that our government never oversteps its proper bounds or violates the rights of individuals. But the Court must also recognize the limits on itself and respect the choices made by the American people.” U.S. Supreme Court Justice Elena Kagan
Current judicial crisis of rift among senior judges has deepened the troubles for Pakistan. This is the direct result of the political crisis and ghosts of Supreme Court’s own decisions of the last few years are now coming back to haunt the judicial corridors. Relations between Supreme Court justices deteriorated over time on several issues reaching to a point where justices are not on talking terms with each other.
Pakistan’s power stool has three uneven legs consisting of Chief of Army Staff (COAS), Chief Justice and Prime Minister; the last being the shortest and weakest leg. In his own fiefdom in the Supreme Court, Chief Justice is first among the equals and under current rules he has vast administrative powers to run his institution. This power has been used by successive Chief Justices to constitute benches in a way to get the desired judicial outcomes. This practice has become so obvious that even ordinary folks with no knowledge about law can accurately predict the judgement based on the constitution of the bench. The current strength of the Supreme Court is fifteen including the Chief Justice and he is presiding over a house divided with seven justices in each camp.
There is a global trend of extreme political polarization and unresolved political issues are being settled in courts. Judiciary has become the new battle ground and Pakistan army calls it ‘the new frontier’. This Trumpization of politics is visible in United States where $42 million dollars were spent by donors for a non-political position of election of a state supreme court justice in Wisconsin. The reason is that in an equally divided court, the outcome of this race will decide the fate of many important decisions. Liberals take their cases to the judges of the states of Washington, New York, and California where justices are liberal in their outlook while conservatives take their cases to Texas where justices are conservative. Pakistan’s political crisis has now reached the judicial corridors dividing the highest court.
The causes of polarization in higher judiciary includes disagreements about the process of elevation of judges to the Supreme Court, constitution of benches to hear important cases, use of Suo Moto powers by Chief Justice and two years ago investigation of a sitting justice by his fellow judges on allegation about assets of his wife.
Some very interesting terms are now used when talking about the higher judiciary of Pakistan. The list includes ‘like-minded judges’ where Chief Justice attempts to elevate judges who think like him, and ‘bench fixing’ where Chief Justice forms a bench where majority will ensure the desired outcome. Justices who may disagree are kept out of important cases. Even normal routine procedures of releasing detailed judgements in a timely fashion (in some cases this has not been done years after issuing a short order), issuing orders at the conclusion of the proceedings of the day and accurate and timely recording of minutes of meetings were not followed. This caused embarrassment as some fellow judges argued that the orders didn’t reflect what happened during the meeting. This has severely damaged the credibility of the highest court.
In the Supreme Court, seniority is the holy grail and all-important positions including membership in Supreme Court Council (SJC); a body that disciplines the judges, Judicial Commission (JC); a body that elevates justices to higher courts and even elevation to the post of Chief Justice is based on seniority. The seniority clock starts ticking from the time justice is elevated to the Supreme Court. In one case, a junior judge was elevated before his senior colleague who was elevated later. This made the former judge senior in the Supreme Court and in due time he will become Chief Justice. If he was elevated based on seniority, then he would have retired before opening of the Chief Justice slot. Chief Justice by a simple trick favored him and it is no surprise that he returned the favor by joining the ‘like-minded club’. The Supreme Court has taken many important cases, but two senior justices were never included in the benches formed by the Chief Justice to hear these cases as they were viewed as belonging to the ‘other camp’. In these circumstances, even if verdict is based on merit, it will lack moral authority.
The Judicial Commission (JC) headed by Chief Justice elevates justices to the Supreme Court and its members include four senior justices of the Supreme Court, one retired justice, one member of the bar, attorney general and law minister. Chief Justice uses his powers in JC to bring his nominees by making deals with the government and the bar. There have been serious allegations of favors where government hiring legal firms of the influential members of the bar and relatives of the judges for its cases. In return, cases being directed to the right benches.
If the Chief Justice does not have the majority, he will not convene the meeting of JC. This resulted in supreme court positions lying vacant for over a year. Last year exercise by the Chief Justice brought a new low to the prestige of the court. He convened the meeting during summer holidays for elevation of five justices as one of the ’like-minded’ members of the JC was retiring in few weeks. Recommendations of the Chief Justice were vetoed by the majority. Instead of accepting the outcome, he simply rose and left the meeting leaving all in the quandary as to what was the outcome of the meeting? When dissenting members went public, Chief Justice released the audio recording of the meeting to prove his point. Recording was done without the knowledge of the participants of the meeting.
Chief Justice made a bargain with the government and a few months later came up with a short list of two of his favored justices who were junior (both were rejected in the previous meeting by the majority) while accommodating one judge from the other side. Attorney General and the Law Minister switched their votes, and all three justices were elevated. Recently the Law Minister publicly apologized for doing this and disclosed that then COAS General Qamar Javed Bajwa had intervened in this matter. There are still two vacancies in the Supreme Court, but the Chief Justice has not convened any meeting as now he does not have the majority in JC. If two additional justices are not from the ‘like-minded’ group, then he loses the majority in the court where his rival camp will have nine justices against seven of his own camp.
In the last one year, two major decisions by the Supreme Court sowed the seeds of the current crisis. In April 2022, the Supreme Court reversed the decision of Deputy Speaker of National Assembly of not allowing the no-confidence motion against the government. This paved the way for passage of a no-confidence motion and collapse of the government headed by Prime Minister Imran Khan. In April 2023, the court took a Suo Moto action forcing the government to hold elections of provincial assembly in Punjab. Both decisions were necessitated by the refusal of politicians to resolve their differences in parliament or through negotiation outside the parliament. In my view, in both cases, the Supreme Court was correct in intervening. However, both cases were of such importance and in view of extreme polarization, it would have been better to have the full court decide on both issues. This would have shown the collective will of the court and less likely to cause intense controversy.
Politicians will try to use courts to get a favorable decision instead of engaging in complex and painful process of negotiation and compromise in the parliament. Sometimes, one political party will win and at other times another, but the court will always lose as its decision will be viewed as politicized. There is also an impression that when judges come under intense criticism for their verdict on a political matter, they try to balance the sheet by deciding some cases in the opposite direction.
The three members of the bench that ordered the current Pakistan Democratic Movement (PDM) coalition government to hold elections in Punjab were also the part of the bench last year that annulled the dissolution order of the previous Pakistan Tehreek-e-Insaaf (PTI) government and forced it to hold no-confidence motion. In April 2022, PDM called the court’s decision as historic and upholding the constitution but calls its current decision as encroachment on parliament’s supremacy and a ‘judicial martial law’. On the other hand, in 2022, PTI called the decision of the same judges a ‘judicial coup’ and suggested that as judges have decided to run the show, it is better to lock the parliament, and everybody go home. Now, PTI is hailing the decision of the same three judges as supremacy of the constitution and vows to stand behind the judges. This should be a sobering moment for the justices.
There was a window of opportunity for reflection for justices, especially Chief Justice. A working relationship with fellow justices to put in place a transparent process of elevation of judges to the Supreme Court, formulation of benches and rules about Suo Moto action. In case of an important issue affecting fundamental rights, the formation of a larger bench, preferably a full court to dispel the impression of bias and avoid controversy. Unfortunately, this course was not taken and hubris on the part of Chief Justice, extreme bitterness, and anger on part of the senior puisne judge and petty personality clashes among justices has set the court on a perilous course.
The result is evident from the fate of a recent bench formed to hear the most important case of constitutional requirement of holding elections within ninety days of dissolution of an assembly that has gripped the nation’s attention. The bench started with nine members but first two members recused then two were removed by Chief Justice to keep his majority (one justice later disclosed that he had not recused, and, in a meeting, it was decided that he would remain on the bench but surprised the next day when his name was not on the bench). Then one member left stating that while sitting on another bench he had ruled that taking up of the current case was not according to the law and lastly another member left stating that fellow members were not consulting him while issuing court orders. Like an ice block on a hot summer day, the bench melted very quickly and starting with nine members ended up with three members. What moral authority the decision of such a bench will be even if gives its verdict according to the letter and spirit of the constitution?
The Supreme Court crisis has seeped into the legal fraternity and bar councils are also divided. President of the Supreme Court Bar Association gave a statement in support of Chief Justice, but a rejoinder was issued by most of his executive body members (10 out of 17). The Punjab Bar Association is divided while bar associations of three smaller provinces have issued statements even calling for the Chief Justice to step down.
Clash among the judges has provided the opportunity for the parliament to claw back some powers from the judges. The amendments passed in the parliament regarding Supreme Court procedures were long overdue and have been a consistent demand of the legal fraternity as well as several justices. However, the timing has made it controversial as the government and Chief Justice are on a collision course.
All power players are keeping a close eye on the events on how a divided court will impact on their positions. PTI wants the current Chief Justice to pressure the government to get early elections. However, it is happy that the government has legislated amendment to curb the powers of the Chief Justice. PTI is confident that it will win the next election. There is no love lost between PTI and incoming Chief Justice Qazi Faiz Isa as PTI government had filed a reference against him. Curtailment of powers of the Chief Justice is in their best interest. The irony is staring in the face of the army. It was not happy with Justice Isa and wanted him out. Army brass was instrumental in initiating the reference against Isa. Imran Khan after his ouster distanced himself from this action and threw army brass under the bus publicly stating that it was done by the army. Current army brass is seriously considering the risks in case of return of Imran Khan. The list includes personal and institutional autonomy, curtailment of army’s powers and foreign policy dilemmas as several countries including Pakistan’s close allies are wary about the return of Khan. Ideal outcome from army’s point of view is at least a five-year quarantine period for Khan and if that is not possible then the army’s hope is that Chief Justice Isa will keep Khan on a tight leash.
Dissent is a norm in the judicial process, but it should be based on a legal argument. Now, it is not about the law, but personal anger is being expressed by the judges in their judgments ornamented with lofty legal jargon. An aberration has emerged in the Supreme Court where dissent by a fellow judge is viewed as a personal insult. Precedents, rules, procedures, and even normal courtesies expected from judges are thrown out of the window to score a point. Chief Justice is heading a deeply divided house where half the judges are in his camp and the other half in the opposing camp. Swords are drawn and when this battle is over the Supreme Court will be gravely wounded in the process and history will not be kind to the justices. Even if Justice Qazi Faiz Isa survives this battle, he will inherit a divided court in September 2023 and his tenure will also be plagued by controversies.
Independence of judiciary was the result of an unprecedented movement launched by the legal fraternity against a military dictator with the full support of general population to ensure rule of law. Unfortunately, judges squandered those gains in petty fights. A lot of soul searching is overdue in the highest court. Once a judge loses moral ground then he simply becomes a caricature with a black robe and a silly wig.
“Judicial abuse occurs when judges substitute their own political views for the law”. Lamar Smith
Acknowledgement: Author thanks many with in depth knowledge about the workings of the judicial system of Pakistan especially backroom parleys in judicial corridors. All errors and omissions are the author’s sole responsibility.
28 May 2023
This is second of the three part series on judiciary. Higher judiciary is also being sucked in the crisis and in addition to judges of Supreme Court, now judges of High Courts are also divided. It is now fear of survival that is dictating actions of several judges of the higher judiciary.
Government and the army are using this division for their own ends in the aftermath of 09 May events. These maneuvers can have serious consequences for the future of independence of judiciary.
The Plot Thickens
“As long as judges tinker with the constitution to ‘do what the people want’, instead of what the document commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically”.
United States Supreme Court Justice Antonin Scalia.
Pakistan’s political crisis has engulfed every institution including the Supreme Court. Judges of the highest court have become controversial due to highly personalized decision-making process, internal conflict among justices and formation of benches of ‘like-minded judges’ to hear political cases. Crisis sometimes also brings new opportunities. Some power brokers are thinking about a move that can re-arrange the whole chessboard. The Supreme Court is divided right in the middle with seven justices on each side. All important positions in the Supreme Court, including the tenure of Chief Justice, are based on seniority. Chief Justice retires at the age of sixty-five. Based on current practice, we know the list of Chief Justices for the next decade.
Chief Justice presiding over benches of ‘like-minded judges’ is viewed by opposition political party Pakistan Tehreek-e-Insaaf (PTI) as sympathetic to their cause of early election while government views him hostile. The court can force the government for early elections before the retirement of Chief Justice Umar Atta Bandyal on 16 September 2022. PTI is confident that it will win the next election with possibly two third majority that will give it the power to even amend the constitution. Here a mutually beneficial arrangement comes into play. Chief Justice can give a decision that helps PTI and brings it to power. PTI can return the favor by making the position of Chief Justice based on three years tenure like the position of Chief of Army Staff (COAS) and not based on compulsory retirement based on age. This will change the whole landscape of the Supreme Court.
Five senior most justices of the court who will become Chief Justice based on current rules include Qazi Faiz Isa (17 September 2023 – 27 October 2024), Ijaz ul Ehsan (28 October 2024 – 05 August 2025), Syed Masoor Ali Shah (06 August 2025 – 27 November 2027), Munib Akhtar (28 November 2027 – 13 December 2028) and Yahya Afridi (14 December 2028 – 22 January 2030). Of these justices, Ijaz and Munib are in Bandyal’s camp while Qazi Isa, Mansoor and Yahya are in the opposing camp. If the three years tenure rule is legislated, then all the justices in Bandyal’s camp including himself are beneficiaries while the three justices in the opposing camp will be out of the race for the top slot.
Bandyal became Chief Justice on 02 February 2022 and will be retiring on 16 September 2023. If his tenure is now fixed at three years, then he will retire on 01 February 2025. During this time, Qazi Isa will retire on 27 October 2024 before the top slot opens. Now, Ijaz as senior most justice will become Chief Justice retiring on 30 January 2028 instead of 05 August 2025 enjoying a three year rather than a ten-month tenure as Chief Justice. During this time Mansoor will retire on 27 November 2027, two months before the opening of the top slot. Now, the senior most justice Muneeb will become Chief Justice on 31 January 2028 enjoying a three-year tenure rather than retiring after an eleven-month tenure. During Muneeb’s tenure, Yahya Afridi will retire on 22 January 2030. So, with one stroke Bandyal, Ijaz and Muneeb will enjoy long tenures while three justices in the opposing camp will be knocked out of the race.
This is a very high-risk gamble. PTI has an interest in pursuing this course. Currently, there is deep mistrust and anger between Imran Khan and the army brass. If Khan comes to power with a significant majority, then there will be very little room for maneuver for the army. The only restraining element to his rule will be the Chief Justice. The PTI government had humiliated Justice Qazi Faiz Isa by filing a reference against him and Isa neither forgets nor forgives. After ouster, Khan tried to distance himself from the reference, blaming it on the army but Qazi Isa is an unexploded ordnance on the road. If the court is under the charge of a known entity like Bandyal then PTI may feel more comfortable. However, there is no guarantee that PTI when it comes to power will go that route.
If this trick is attempted at this stage, there will be revolt in the Supreme Court and rival justices will retaliate. In 1997, Chief Justice Syed Sajjad Ali Shah also faced a revolt in his court and was finally ousted by his fellow judges. The Shah was handicapped as most brother judges revolted against him while Bandyal’s position is much stronger as he has half the court circling the wagons. Still, he is carefully watching his flanks. He has not taken any vacation or an overseas trip as this will make senior puisne judge Qazi Isa acting Chief Justice and, in that position, he can pull a ‘judicial rabbit’ from his hat.
Legal fraternity is also deeply divided but most of country’s bar councils have criticized modus operandi of the Chief Justice. There will be pushback from the legal fraternity that will paralyze the judicial system of the country. Senior lawyers especially from smaller provinces have privately communicated that this will be the red line.
In view of highly polarized discourse affecting every institution, even good ideas become controversial. The concept of three years tenure for Chief Justice is the right approach. The current system of elevation based only on seniority and compulsory retirement at the age of sixty-five years has created many anomalies. There have been cases where Chief Justices of Supreme Court and High Courts served only for few months and in some cases, their tenure was counted in days. Chief Justice S. A. Rahman served for 94 days, Rana Baghwandas 87 days, Bashir Jehangiri 24 days and Jawad Khwaja 23 days. Recently, an absurd situation happened at Peshawar High Court where one Chief Justice served only for one day before reaching the retirement age as his predecessor retired only a day earlier. His successor, the current Chief Justice of Peshawar High Court will serve only for four months.
The current system looks like the musical chairs for the justices that is costing the system. Judges get a very lucrative retirement benefit package in addition to the pension. A Supreme Court Judge on retirement is entitled to following benefits:
- Service of a driver and an orderly.
- Deployment of one security guard at the retired judge’s residence by the police round the clock.
- 3000 free local telephone calls per month.
- 2000 units for electricity.
- 25 hm3 of gas per month and free supply of water.
- 300 liters of petrol per month.
- Entitled to purchase of official vehicle in their use on their retirement at depreciated value.
All the above benefits entitled to a retired judge are free of income tax and after his death, his widow is entitled to same benefits.
Of the last twelve Chief Justices of the Supreme Court of Pakistan including the incumbent, only three had a tenure of over two years. In the next eight years, there will be seven Chief Justices and only one will serve for more than two years. If a Chief Justice is serving for an average of one year, and more justices are added to the court on frequent retirements, it adds enormous costs to the national exchequer on a continual basis. This exercise is not sustainable in the long run in a country facing serious economic challenges. At some point, there needs to be a dialogue on this issue within the legal fraternity and among judges for the future course.
“We can never be gods, after all; but we can become something less than human with frightening ease.” N.K. Jemisin, The Hundred Thousand Kingdoms
03 May 2023