Chief Justice Bandial's Legacy

Chief Justice Bandial's Legacy
If one were to describe the outgoing Chief Justice’s legacy in a word or two, it may be fitting to call it a shambles. The journey started inauspiciously when, even as acting Chief Justice, he unsurprisingly concentrated all powers in the office of the CJP with respect to taking suo moto notice under Article 184(3) of the Constitution. Alarming as it was, that also raised quite a few eyebrows in the legal and judicial circles since the principles laid down for taking suo moto notice smacked of and amounted to brushing aside the cardinal principle of nemo debet esse judex in propria causa (no one can be a judge in his own cause).

Since, as the incumbent CJP, Justice Bandial was the sole beneficiary of such sweeping powers in that regard, his act of bequeathing himself with a veritable sword whose flourish had the potential to irreparably damage and disturb the constitutionally mandated equilibrium in terms of trichotomy of powers. It will be fair to say the living nightmare it has unleashed is bound to leave long lasting and deep scars on the national psyche.

Even his ever-courteous and smiling demeanor has not helped him to adequately camouflage or even rectify his misplaced priorities as the top adjudicator in the land. The laboriously bureaucratic imprint in his style and approach towards running a constitutional institution could be attributed to the household he grew up in. The same style, although popular with top bureaucrats like his father, could successfully keep an uneasy and tenuous balance in the administrative realm, but when applied to the top court in the land was bound to result in a chain of unmitigated disasters as happened one after the other during chief justice Bandial’s ‘reign.’

Such an approach was bound to create camps within the institutions which inevitably happened in his case too but the tragic part is, given the unavoidable reality of differences of opinion amongst judges which may ordinarily happen in any supreme court, his tenure is a classic case study of widening difference eventually resulting into an unbridgeable and irreversible chasm. It will be fair to say that his one-and-a-half-year stint is depressingly dotted with a series of his own and yet unacknowledged mea culpas.

The biggest and the most catastrophic of those may be the unnecessary persecution of Justice Qazi Faez Isa and his family. The systematic and merciless hounding of the family was not only disturbing but the sad part of it was that it set the justice system a few decades back and that too at the hands of those judges whose job is to uphold the law and the constitution without any fear or favour.

Chief Justice Bandial being the leader of the pack threatened to trump all travesties of justice including those of Bhutto’s judicial murder and Nawaz Sharif’s ouster from power through shockingly dubious decisions of the Supreme Court. Suo moto actions taken by previous chief justices in the past like crowd funding a dam, demolition of high rise buildings in Karachi and bizarrely restricting farmhouses to the legally permissible limits to mention but a few, pale into comparison how the outgoing chief justice blew hot and cold on a number of issues just to keep a tight hold on the reins of power.

Needless to mention, his subsequent justifications on why a judge was treated unfairly on his watch has exacerbated the issue diluting the sanctity of the Supreme Court in general and those of inconsistent decisions authored by him in particular. Most glaring example being the re-writing of the Constitution meant to give control of the Punjab Assembly to Imran Khan through a dubious interpretation of Article 63A.

The way the latter weaponised his unconstitutionally acquired leverage to trigger an unending existential political crisis is now stuff of the legends, all done and managed under the protective gaze of the Bandial supreme court. Suffice it to say that it was akin to giving controls of a helicopter to a cyclist. The rest, as they say, is history.

Much energy and time has been spent by justice Bandial and his side of the divide to give a false impression of stoicism in the face of “unreasonable” approach of the opposite camp. The above, sadly, is his version of what ails the Supreme Court which also sums up his legacy. In other words, its not my fault!

If justice Bandial were to hide behind his faux self-pity while being stoic in the face of heavy odds, he will have to get succor from Faiz Ahmad Faiz’s immortal couplet as his parting dirge:

donoñ jahān terī mohabbat meñ haar ke

vo jā rahā hai koī shab-e-ġham guzār ke

One piece of advice for the incumbent Chief Justice: my lord will be best and fondly remembered for his important reforms in the administration of justice especially with respect to the Apex Court such as leaving substantial decision making like re-framing the Supreme Court Rules to the full court and making the process of judicial appointments fairer and merit-based, amongst a long list of actions waiting to be taken. The fragile state of our economy, politics and the general polarisation in the society demands that the approach while reforming the justice system should be evolutionary and inclusive.




Tariq Bashir is a Lahore based lawyer. Follow him on twitter @Tariq_Bashir