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INSTITUTIONAL harmony is the foundation of institutional strength. In Pakistan, one instititution displays it better than any other. It remains the strongest. Admittedly, military command structures are unique and require unquestioning loyalty. In a civilian environment, disagreement and debate is regarded as healthy. When this degenerates into personal attacks on the integrity and conduct of colleagues it undermines the institution.
The new chief justice of Pakistan has expressed regret that certain sections of the media, particularly social media, scandalise judges rather than focusing on their judgements. He has cautioned that such conduct is “unprofessional and uncivilised quite apart from being unconstitutional”.
In April last year, a divided Supreme Court decided to accept the Justice Isa review petitions by a majority of six to four. As has become common, the decision was expressed through short orders with detailed reasons to follow. The majority judgement setting forth these reasons was released on Jan 29 this year. It is signed by all six judges who were part of the majority at the time of the short order. One of them, Justice Malik, has since retired. He was sent the detailed reasons and agreed to them.
Justice Afridi next to his signature underneath the majority judgement notes that he has allowed all review petitions apart from the one filed by Justice Isa himself. He states that his reasons are set forth in his separate note. His signature on the majority opinion indicates that he endorses it subject to the qualifications set forth in his note. The note clarifies that he rejected Justice Isa’s petition on the basis that a sitting judge should not litigate.
It is not clear what prompted the minority to address the status — as opposed to the reasoning — of the majority judgement.
The upshot of the majority decision was that further proceedings before any forum, including the Supreme Judicial Council, could not be taken against Justice Isa on the basis of action taken under the order that was recalled by the review. The reason was simple. Since the order was unlawful, any action taken thereunder would also be tainted with this illegality. Neither the majority short order nor the detailed judgement place Justice Isa or his spouse above the law.
In fact, the foundation of the majority opinion is that no one, including a judge, is above the law. At the same time, everyone is entitled to be treated in accordance with the law. This principle which is enshrined in Article 4 of the Constitution has frequently been ignored by our courts seeking to advance what they perceive is in the public interest.
Anyone on a crusade to improve the country should join politics. The majority judgement has held that even the broad power which is vested only in the Supreme Court under Article 187 of the Constitution to do complete justice is limited by the right of every citizen to be dealt with in accordance with the law. This is welcome.
About a week after the majority had released its detailed judgement, the minority followed. The minority judgement is authored by the CJP and has been signed by all four minority judges indicating their concurrence. An additional note has been added by Justice Akhtar which also has the concurrence of all minority judges.
The minority judgement of the CJP starts with quoting a verse from Surah an-Nisa as translated by Maulana Maududi. The verse enjoins believers to bear witness to the truth even though it may be against yourself. With this preface, the CJP notes that the essence of the controversy in this case is whether justice can be dispensed by a court while ignoring the truth. In two other places in this minority opinion, the CJP quotes different translations of the Holy Book urging people of faith to be truthful and warning of the devastating consequences of deviating from this divine command. The minority have couched their reasoning in absolute and religious terms. The implication is obvious. This approach has its own issues which should be clear to all.
The minority opinion uses strong language in respect of the conduct of the sitting judges. It states Justice Isa was “erratic and emotional” during the course of arguments. It also states a judge hearing the review petitions interrupted the arguments of the additional attorney general which hindered the latter from freely arguing the matter and disrupted court decorum. This strong language may impact the faith of the public in the CJP’s colleagues who sit with him to decide cases.
Perhaps the most troubling part of the minority’s decision is the additional note authored by Justice Akhtar. The note is unusual in that it does not deal with the case before the court. It essentially sits in judgement on the decision of the majority judges and seeks to limit the scope and impact of the majority order and judgement. It holds that there is no binding order of the court restraining further action against Justice Isa on the basis of information obtained pursuant to the order that was recalled in review. It is not clear what prompted the minority to address the status — as opposed to the reasoning — of the majority judgement or order. Since it is a minority note, any observations and findings therein are of no legal consequence and have no binding force as precedent or authority.
There is a binding decision of a 10-member bench of the Supreme Court that has restrained further proceedings against Justice Isa on the basis of information and reports obtained pursuant to the original order that was reviewed. If the Supreme Judicial Council or any other authority takes such action, this would prima facie constitute contempt of this binding Supreme Court order. For the sake of their institution, the members of the bench should now bury the hatchet and move on.
The writer is an advocate of the Supreme Court.
Published in Dawn, February 11th, 2022
