The pillars of any decent democratic society are the executive, the legislature and the judiciary. There have been many occasions in our history when the executive has been at loggerheads with the judiciary, or there have been spats between the legislature and the judiciary. For the first time in history, this country is now facing an internal crisis of monumental proportions. The infighting and internal fracas in the superior judiciary have now crossed all limits of decency, civilised behaviour or even the traditions of the judicial branch of government.
Bickering and difference of opinion between the learned judges of the Supreme Court has split the topmost levels of the judiciary right in the middle. The latest Presidential Ordinance amending the Supreme Court Practice and Procedures Act has let the cat out of the bag, in the form of the simmering judicial conflict coming to a head and an open public display. Qazi Faez Isa, the retiring Chief Justice of Pakistan (CJP), is up against the wall, faced with an open revolt and a hostile group of senior judges questioning the legal position of the controversial amendment. The crisis in the apex court has peaked when the coalition government is desperately trying to tame the superior court. The Supreme Court stands divided and has now become a laughing stock because of the severe infighting.
The role of the CJP is now being openly questioned and challenged by his brother judges. The dispute over the formation of a five member bench hearing the review petition on the ruling on the defection clause has increased tensions in the judiciary when Justice Munib Akhtar refused to be a part of this bench. The author of the 2022 ruling, Justice Munib Akhtar, was removed from the Practice and Procedures Committee that was reconstituted by the CJP after the promulgation of the presidential ordinance. Justice Mansoor Ali Shah, the next probable CJP, was asked to be a part of this committee, but refused to be a part of the committee because of the removal of Justice Munib Akhtar. He has also questioned the legality of the ordinance. Justice Munib Akhtar has written two letters to the registrar of the Supreme Court and then received a detailed reply from the CJP – but this infighting between the judges has turned the highest court of the land into a ridiculous mockery of what a judiciary ought to be. The two seniormost learned judges of the court have refused to be a part of the committee picked by the CJP and now the committee and the five member bench have both become questionable. Writing to the Chief Justice Munib Akhtar made his position clear that he has reservations over the bench formed by the committee reconstituted by the CJP and that is his reason for not being a part of the bench.
Surprisingly, the divisions among the superior judges are being encouraged by the ruling parties. A very dangerous game is being played, which could wreck the judiciary and harm the democratic process in the country
In a recent 70-page judgment regarding reserved seats, the senior-most judge Justice Mansoor Ali Shah responded to the dissenting note of Justice Aminuddin Khan and Justice Naeem Akhtar Afghan:
“We feel constrained to observe, with a heavy heart, that our two learned colleagues in the minority have made certain observations in their dissenting judgment of 3 August 2024 which does not behove judges of the Supreme Court of Pakistan, the highest Court of the land. We take no issue with their having and expressing the view that, in their understanding, our order dated 12 July 2024 is not in accordance with the Constitution, as members of a bench of this court, or any court, can legitimately differ on issues of fact and law […] However, the manner in which they have expressed their disagreement falls short of the courtesy and restraint required of judges of the superior courts.”
In their dissenting note on the issue of reserved seats, both judges had opined that the superstructure created by the 12 July majority judgment did not come within the ambit of the jurisdiction vested in the Supreme Court or the constitution. According to a senior lawyer, “For the first time in Pakistan’s judicial history, minority judges had asked institutions not to implement the majority judgment, thus inviting chaos in the country.”
The fact of the matter is that the learned judges of the Court should display some restraint and decency instead of fighting and bickering like school children, because their behaviour damages the dignity and prestige of the highest court of the land. Ugly scenes in the Supreme Court were seen only once before, when in 1997, during the PML-N government, two parallel courts convened simultaneously in opposition to each other in the Supreme Court building, and supporters of the Government attacked the Sajjad Ali Shah court while the law enforcement agencies remained silent spectators. We can only hope that these shenanigans in the apex court will not result in another Sajjad Ali Shah moment.
The CJP Qazi Faez Isa wrote a letter to the registrar, asking for explanation of how the 14 September clarification order by Justice Mansoor Ali Shah was uploaded on the court’s website – and this too was a glaring example of the bickering and schisms in the top judges of the country. Earlier Justice Munib Akhtar had objected to the CJP as head of the bench against the decision of the previous committee, it was pointed out that the review bench was to be headed by Justice Mansoor Ali Shah. The decision to overturn has now raised serious questions about the impartiality of the CJP.
It is being said that the judgment on the review petition won’t take much time and will be announced before 26 October – the day the CJP is supposed to retire. Members of the coalition government are already hinting at attempting to get the controversial constitutional amendment passed in the next couple of weeks. Surprisingly, the divisions among the superior judges are being encouraged by the ruling parties. A very dangerous game is being played, which could wreck the judiciary and harm the democratic process in the country. Without an independent judiciary, we cannot expect a free, robust and viable democratic dispensation.