CJ Bandial's Tenure: The Desperate One-Man Show

CJP Umar Ata Bandial courted controversies by appointing like-minded judges on SC benches. He weakened the top court by making decisions that appeared partisan. At the end of his tenure on September 16, 2023, he will leave behind a bitter and complicated legacy

CJ Bandial's Tenure: The Desperate One-Man Show

The outgoing chief justice of Pakistan, Umar Ata Bandial, is set to retire on September 16, 2023 – a day before his birthday – amid controversies and criticism over leaving behind a much-weakened judiciary.
Contrary to what many may think, history will ultimately remember Umar Ata Bandial as a tolerant chief justice. Unlike his predecessors (Saqib Nisar, Asif Saeed Khosa and Gulzar Ahmed), he showed restraint towards the politicians, media and netizens. He honoured lawyers in the courtrooms, even if they disagreed with him ideologically.

Pro-women judge

CJP Bandial donned the robes of the chief justice in a changing Supreme Court. There was an air of women empowerment after his predecessor, Chief Justice Gulzar Ahmed, had appointed Pakistan's first female Supreme Court judge. Bandial carried that tradition forward and appointed the second female judge to the Supreme Court, Justice Mussarat Hilali. 

Hina Firdous Khan, an officer of the Information Ministry who served as the Public Relations Officer (PRO) in the Supreme Court on deputation during CJ Bandial's tenure, remembered her time in the top court fondly. "It was a privilege to be a part of the CJP team," she told The Friday Times

"Chief Justice Bandial was always approachable and courteous. He paid attention to diverse perspectives and created an inclusive work environment. He respected his subordinate staff," she added.

A few actions by CJ Bandial reflect how he discouraged the misogynist mindset in the top court's administration by appointing a woman as the secretary of the Law and Justice Commission. Moreover, in his extempore "farewell" speech at an event to welcome the New Judicial Year 2023-2024 earlier this week, CJP Bandial specifically appreciated women working with the top court and the Law and Justice Commission of Pakistan. 

The rise of Bandial

Born on September 17, 1958, in Lahore, Umar Ata Bandial secured his Higher Senior Cambridge certificate from Aitchison College in 1975. He went on to complete his BA in Economics from Columbia University in the USA in 1979, followed by a Law Tripos degree from Cambridge University, UK, in 1981.

During his career, Bandial also handled international commercial disputes. He appeared in arbitration matters before the Supreme Court of Pakistan and foreign arbitral tribunals in London and Paris until 2004. 

In December 2004, he was appointed as judge of the Lahore High Court (LHC). He declined to take oath under the Provisional Constitutional Order (PCO) in November 2007. 

Umar Ata Bandial was elevated as the chief justice of LHC in June 2012 and to the Supreme Court as a judge on June 17, 2014. During his tenure as judge and chief justice in LHC, he issued judgments on a number of important cases, such as the sanctity of the office of the president. Bandial ruled that as the symbol of unity of the federation, the position requires the president to stay detached from political involvement. He also ruled on a case granting autonomy to the Chief Election Commissioner. 

However, the political and judicial landscape changed after Bandial became the chief justice of Pakistan. The entire politics of the country started revolving around one institution, the Supreme Court. The court was involved in high-profile political cases after the ouster of Imran Khan from the office of prime minister in April 2022. 

The SC's rate of disposal of cases showed a positive trend till February 2023, when some 52,590 cases were pending, down by 2,116 cases from the year before. But things took a turn when Bandial took the sole suo moto notice of the year, on the delay of elections in Punjab and Khyber Pakhtunkhwa. Thereafter, many judgments on political issues led to anomalies and aberrations. By August 31, a Supreme Court report showed that the pendency of cases had increased to 56,544. 

One political party or other criticized him ever so often. 

A partisan judge?

CJP Bandial first came under fire from the Pakistan Tehreek-e-Insaf (PTI), who targeted him when the top court opened its doors at night and took suo moto notice on the ruling of the then-Deputy Speaker Qasim Suri. CJ Bandial headed the bench that ordered the ouster of Imran Khan from the office of prime minister. 

Otherwise, and arguably so, his decisions favoured the PTI. 

When Imran Khan led a protest to the D-Chowk in Islamabad after his ouster from the PM office, despite the top court's orders that barred him from entering the D-Chowk, Justice Yahya Afridi recommended initiating contempt of court proceedings against Imran. But the CJ, showing restraint, sought reports from intelligence agencies on whether Imran was informed about the top court's order. The case remains pending in court. 

Then there's the infamous judgment on Article 63-A, wherein Chaudhry Pervez Elahi was declared the chief minister of Punjab under provisions of Article 63-A. The judgement shattered the foundations of parliamentary politics in Pakistan. 

Beyond the concerns of the public, especially politicians, eyebrows were raised when dissenting voices started coming from within Bandial's Supreme Court. 

Justice Qazi Faez Isa wrote to CJ Bandial and questioned the composition of a larger bench to hear the presidential reference and the SCBA petition.

Even on his last working day, CJP Bandial appeared to promote PTI's narrative by issuing a judgment in the NAB amendments case, which would impact almost 60 percent of the top leadership of PTI's political rivals. The judgment also strengthened the military establishment against politicians.   

Like-minded judges

The country faced a number of constitutional crises during CJ Bandial's one-year-and-six-month-long tenure. The SC benches, headed by the CJP, passed controversial judgments. He also introduced the concept of 'like-minded judges' in the corridors of the apex judiciary. He gave priority to junior judges over seniors.

Differences surfaced within the judges of the top court when the former military establishment used former prime minister Imran Khan to remove Justice Qazi Faez Isa. In fact, for the first six months of Bandial's tenure, justices Qazi Faez Isa and Sardar Tariq Masood were not included on benches headed by CJP Bandial.

The divisions within the SC judges became even more apparent in a case on the delay of elections in Punjab and KP. The SC bench, which started with nine members, ended up with only three judges. CJ Bandial ignored the legal concerns raised by Justice Athar Minallah and Justice Mansoor Ali Shah, who were all initially part of the nine-judge bench, questioning if assemblies were first dissolved illegally. 

Even officials of the Inter-Services Intelligence (ISI) and Military Intelligence briefed the chief justice and two other judges on the bench hearing the case about security issues confronting the country. But, heading the bench, CJ Bandial was determined to order elections for the provincial assembly in Punjab on May 14. The ruling, which the government never complied with, ended up undermining the writ of the institution. 

The tenure of the outgoing chief justice not only weakened the top court but also damaged the authority of the parliament. The Supreme Court Practice and Procedure Act, which regulates the unfettered powers of the chief justice regarding suo moto notices and fixation of cases, was suspended. The interim order was issued pre-emptively by the Bandial-headed bench because the legislation had not become law by that time. The court has functioned under the cover of the stay since April of this year.

Audio leaks

Some of the important cases that the apex court dealt with during Bandial's tenure were trying civilians in military courts, the National Accountability Bureau (NAB) NAB amendment case, the audio leaks case and the Supreme Court Review of Judgments and Orders case. All of these cases were affixed before benches which were presided over by CJ Bandial or his like-minded judges. He was often accused of toeing the PTI line, especially in the case of the NAB amendment case. 

CJ Bandial declined requests from the Attorney General for Pakistan and the Pakistan Bar Council for the formation of a full court to hear high-profile cases and to not invite criticism, especially since the Practice and Procedure Act is stayed. 

Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court, in their dissenting notes on the poll dates case said that the suo motu proceedings initiated by the CJP were "wholly unjustified", besides being initiated with "undue haste". They recommended to revisit the powers of 'one-man show' enjoyed by the office of the CJP". 

Chief Justice Bandial, however, ignored their recommendations.

CJ Bandial stayed the proceedings of the commission probing the audio leaks and suspended the operation of the federal government's notification in this regard. He observed that the formation of the government-appointed judicial commission, to be headed by Justice Qazi Faez Isa and comprising two chief justices of high courts, "interfered in the judiciary's internal matters" and noted that there were errors in the notification issued by the government for the formation of the commission. 

Legal and political experts thought this was a matter of direct conflict of interest – as his mother-in-law's alleged audio recording, in favour of the PTI, was to be scrutinized by the commission. However, the Supreme Court Bar Association's President Abid Zuberi challenged the notification of the commission in the top court. Interestingly, Zuberi's alleged phone tape, where he could be heard talking about the fixation of cases before Justice Mazahar Naqvi, was also leaked and subject to the commission's probe. 

Attorney General for Pakistan Mansoor Usman Awan requested the CJ to "not be a part of this bench" and leave the matter to the next senior-most judge, based on the conflict of interest issue. However, the CJP responded by saying, "You should not interfere with our administrative authority." He issued a written order where he expressed anger over the PDM government and the challenges it had posed for him during his tenure. 

CJP Bandial's legacy

Senior journalist Hasnaat Malik told The Friday Times that the outgoing Chief Justice Umar Ata Bandial leaves behind a deeply divided judiciary. 

"Throughout his tenure, Bandial never summoned a full court meeting (on the administrative side) and formed benches for hearing high-profile cases that included like-minded judges. This not only damaged the image of the CJ but also of the judiciary," he said. 

Malik added that the outgoing chief justice elevated 'like-minded' judges from the high courts to the Supreme Court. 

"Five judges were supposed to be elevated in CJ Bandial's tenure, but only four judges could be elevated – because he had no majority vote in the Judicial Commission of Pakistan (JCP) for elevation of the fifth judge". 

He recalled, "Former Chief of Army Staff Qamar Javed Bajwa had asked the PDM government to support CJP Bandial's nomination in the JCP for the elevation of junior judges – Justice Shahid Waheed and Justice Hassan Rizvi." 

Malik believed that the controversial decisions of former justices Iftikhar Chaudhry and Saqib Nisar were far more damaging to the country than those made by CJ Bandial. He, however, can be accused of escalating tensions between the establishment and the Supreme Court. His court ordered the government to hold snap polls in Punjab after a petition was filed by the PTI that challenged the Election Commission of Pakistan's order to postpone the elections in Punjab and KP. 

Further, when Imran Khan decided to dissolve the assemblies in Punjab and KP, Bandial and his camp of judges supported the PTI stance that elections should be held in the provinces within 90 days.

It is a fact that neither CJ Bandial held full court meetings on administrative issues nor did he take up cases of critical public importance, such as enforced disappearances, during his tenure. Though he talked about the accountability of judges, he included Justice Naqvi in the nine-member bench to hear petitions filed by former CJP Jawad S Khawaja and others against the trial of alleged May 9 rioters in military courts. Justice Naqvi was accused of abusing his powers to gain financial benefits, and complaints against him remain pending in the Supreme Judicial Council (SJC), a forum under Article 209 of the Constitution for the accountability of judges. 

Tenure of dissenting notes 

Legal experts believe that CJ Bandial's tenure will be remembered as the tenure of dissenting notes and reservations by judges of the opposing camp.

Rasheed A. Rizvi, senior lawyer and former chairman of the Executive Committee of the Pakistan Bar Council (PBC), told The Friday Times that Umar Ata Bandial's tenure as the chief justice of the Supreme Court is a bag of mixed impressions.

"Political parties are against his decisions, and a section of the legal fraternity does not support his judgments." 

He added that CJ Bandial "proved to be weak in managing cases. It was a well-established practice that fresh cases were fixed after delays. A lot of judgments are yet to be written". 

Justice (retired) Mabool Baqar, who is currently the caretaker chief minister of Sindh, told The Friday Times, that CJ Bandial "weakened the institution as well as his credibility." 

Justice (retired) Shaukat Siddiqui (who served in the Islamabad High Court until his unceremonious removal) said CJ Bandial's tenure was controversial, lacklustre and full of disputes – "He failed to maintain unity within the institution and develop jurisprudence." 

Hassan Raza Pasha, incumbent chairman of the PBC Executive Committee, said CJ Bandial belongs to a respectable and educated family. "He meets people and lawyers in his chambers with respect. But, he could not control the institution. Tensions escalated amongst judges because he never summoned the full court meeting." 

Pasha was of the view that the way CJ Bandial and his bench decided the case on Article 63-A, gave obvious benefit to a political party. 

Legal wizards would like to see the unfettered powers of the chief justice of Pakistan be regulated in the future, either by a decision in the Supreme Court Practice and Procedure Act case or by holding full court meetings in the initial days of Bandial's successor, Justice Qazi Faez Isa's tenure as chief justice of Pakistan.   

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain