The year 2024 was not an easy one for the country’s judiciary, as it saw parliamentarians putting their heads together to devise a constitutional package that eventually split the Supreme Court into twain, a constitutional bench and a regular bench.

The development is seen by many as an attempt to settle an old score on part of the executive, by turning the tables on the judiciary to avenge some of the onslaughts it has faced in the past. However, the judiciary itself must shoulder some of the blame for allowing this to happen, mostly due to dissent within its own ranks.

The senior most judges, considered a threat by the executive and detrimental to their interests, became members of the regular bench to handle ordinary disputes, while the constitutional bench went on to decide cases that require constitutional interpretation.

Incumbent Chief Justice of Pakistan (CJP) Yahya Afridi, who has launched efforts to improve the service delivery mechanism by holding meetings with stakeholders, is himself not part of the constitutional bench hearing important cases such as the trial of civilians by military courts and may also hear soon challenges to the 26th Amendment — a situation that will deprive the nation of the opinions of top adjudicators.

Before the amendment, important cases were usually heard by a full court consisting of all judges of the apex court. Thus, many reckon, the judiciary is the ultimate loser.

“It is the need of the hour that judges call a full court meeting to sort out their differences inside their chambers than washing the dirty linen in the full glare of prying eyes,” was the suggestion of Supreme Court Bar Association (SCBA) President Mian Muhammad Rauf Atta, when he was asked for his perspective.

In no way could the outgoing year could be termed “good” for judiciary, especially the SC, was his prompt reply.

The division among judges, which turned into a letter-writing competition, undermined the dignity of the apex court at a time when Pakistan was already suffering with its judiciary at the lowest ranking in the world, also shaking the confidence of people.

This situation encouraged the government to take advantage and introduce the 26th amendment since the judiciary remained engrossed in deciding political cases while ignoring the accumulating backlog, he said.

Mr Atta said that only merit-based appointments and bringing reforms to the superior judiciary would restore people’s confidence in the judiciary.

‘Unnatural arrangement’

Could this year be termed worst for the superior judiciary and Constitution?

Answering this question, senior counsel Chaudhry Hasan Murtaza Mann stated that the word ‘impartial’ was the soul of any judicial system, however, the judges seem to have overlooked the basic principle.

It all started with the filing of a presidential reference against then-CJP Qazi Faez Isa, which divided the judiciary into two groups, both believing they were on the right side, the counsel suggested.

But both groups were not impartial, he feared, and to substantiate his argument, the counsel cited the example of the case relating to holding of elections for the Punjab Asse­mbly, which was dissolved on the instructions of then-prime minister Imran Khan.

Unfortunately, some senior judges stayed away from the hearing, though they should have preferred to be on the bench and decided the matter in whatever manner they deemed appropriate.

This saw the beginning of the fall of the judiciary like the house of cards, as the judges at that time were not behaving impartially, he regretted.

Similarly, once elections were held on Feb 8, the tilt of such judges barring Justice Isa went to support PTI, he said. Why did this happen, he asked?

It was not due to a love for PTI, but because of the internal politics in the SC, wherein one group wanted an extension in Justice Isa’s tenure while the other opposed it, resulting in the judiciary losing its impartiality, he bemoaned.

The counsel termed the 26th amendment a clear assault on the judiciary and Constitution, but regretted that only because of the SC’s internal politics the executive could dare pounce on it, otherwise it could never have gathered the strength to push the amendment through, that too by using force against several parliamentarians.

Mr Mann, however, said that the amendment will not survive since no “unnatural” arrangement could survive forever.

‘Annus horribilis’

Former additional attorney general (AAG) Tariq Mehmood Khokhar described the year 2024 as the Supreme Court’s annus horribilis or horrible year. External elements with collaboration from within were the root cause of it, he regretted.

Justices Ijaz-ul-Ahsan and Mazahar Ali Akbar Naqvi exited ignominiously, the Jan 13 election symbol decision “disenfranchised” the nation and Feb 8 election results were “appropriated”, he regretted, adding that a minority opinion in the reserved seats case was incited, impartial election tribunals were undone, stage was set for the 26th amendment by an unrepresentative legislature, military trials, convictions and sentences of civilians were permitted etc.

The consequences were dire, he said, adding that the office of CJP was appropriated, the SC, judicial independence, rule of law, democracy, democratic accountability, and a free press all now stand diminished. A possible subversion of Constitution was done by unconstitutional means, he alleged.

Mr Khokhar said that trial of civilians by military court is not permitted and it is a breach of international humanitarian law. Pakistan cannot evade its international responsibility by claiming domestic jurisdiction, he said.

The SC decision in the Reko Diq case pushed Pakistan to the brink of financial bankruptcy, he recalled, adding that its interim decision in the civilians’ trial by military courts case has now set the stage for economic sanctions.

Former SCBA leader Muhammad Akram Sheikh said the year witnessed national elections, but the results stunned the electors, monitoring agencies and the media.

The issue of special seats, resolved by the SC, attracted an unprecedented reaction by the establishment and its favoured political party, which allegedly decided to punish the top judiciary.

The regime inflicted unprecedented harm on the most paramount state organ of an independent judiciary, he said.

Advocate Abdul Moiz Jafferii said the year was perhaps the most disastrous judicial year in Pakistan during a nominal demo­cratic period.

He said people allegedly had a chief justice operating in tandem with the executive, refusing to recognise interference in the judicial affairs or the electoral process. This culminated, he said, in a captured judicial system by way of the 26th amendment, after which “we have had absolute stagnation”.

“We now have a government picking which judges will sit on benches that can serve its interests,” he regretted.

Published in Dawn, December 30th, 2024