The outgoing year saw the superior courts in Pakistan turn into a battleground between politicians and the state. This conflict caused a deep chasm to surface within the courts as well, which not only affected national politics but could become a cardinal factor in shaping the political landscape of the country while stepping into 2024.
The year saw a transition in the top court's policy with the retirement of Chief Justice of Pakistan Umar Ata Bandial, a judge seen to have leanings for the Pakistan Tehreek-e-Insaf (PTI). He left his office, leaving behind a tarnished legacy and a clear division among the judges.
Justice Bandial was succeeded by Justice Qazi Faez Isa, ushering in hopes for a change in the highest court of the land.
After donning the robes of the chief justice, Justice Isa faced many challenges ranging from a division among judges to political turmoil produced by judgments of the top court. It would be incorrect to see the politico-legal crisis in the country in isolation with the issues intertwined.
Elections, 'good to see you' and political schisms
Ideally, elections in Punjab and Khyber Pakhtunkhwa (KP) were supposed to take place in 2023. But the court's orders in this regard could not be implemented owing to ground realities. However, the pursuit of elections resulted in many significant events, not only in politics but also in the apex court itself.
Carrying the blemish of opening courts at midnight in 2022, the year began with many challenges. Chief Justice Bandial's like-minded judges recommended he initiate suo moto proceedings. On February 22, 2023, the top court intervened, attempting to impose its fragile writ, but found the establishment on the opposing side.
Terming the matter of 'great public importance', he constituted a nine-member bench to adjudicate the matter. The original bench included Justice (retd) Bandial, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah.
However, the case was mired in controversies inside and outside the courtroom, leading to Justice Minallah, Justice Afridi, Justice Naqvi, and Justice Ahsan distancing themselves. The top court missed the chance to reverse the action of dissolving assemblies by not including legal questions posed by Justice Minallah: whether a chief minister can advise the governor to dissolve an assembly on the direction of a person who is not a party head. Legal experts say that if Justice Minallah's questions were taken up and argued, it could have returned political stability to the country within days.
Once four judges recused from the bench, the former CJP reconstituted a five-member bench, now comprising himself, Justice Shah, Justice Akhter, Justice Mandokhel, and Justice Mazahar.
The reconstituted bench delivered a 3-2 majority decision on March 1, 2023, in which President Arif Alvi was determined as the competent authority to appoint the date for elections and that the commission would announce the date. It directed the commission to proceed and announce the election date.
However, dissenting opinions were expressed by Justice Shah and Justice Mandokhel, who also questioned the maintainability of the suo motu proceedings initiated under Article 184(3) of the Constitution of Pakistan.
The Bandial-led bench of the top court, though, allowed a delay in the election by ruling that the April 9 date was 'constitutionally competent', but if polls cannot be held, then the ECP must propose a date that 'deviates to the barest minimum' from the deadline. The commission then set the date for provincial assembly elections in Punjab as April 30 but then reversed its decision and postponed the elections until October 30.
Subsequently, on April 4, the Supreme Court, in response to a petition filed by the PTI, declared the ECP's decision unconstitutional and ordered the polls to be held on May 14. But the polls could not be held.
It was during this phase that the May 9 turmoil broke out. Former prime minister and PTI chairman Imran Khan was detained from within the Islamabad High Court (IHC) premises. It took a 'rescue' from the Supreme Court to get him out of the custody of law enforcement agencies. Upon seeing Imran in his courtroom, former chief justice Bandial famously remarked 'good to see you'. The Bandial-led bench proceeded to declare Imran's arrest on May 9 from the premises of IHC as illegal.
This invited severe criticism by the politicians, who took the remarks as proof the court had turned partisan. Later, Bandial tried to clarify his position, but the damage to him and the institution had already been done.
Later, in August 2023, during an address in Lahore, the former Chief Justice Bandial said whether elections take place or not, history will note that he gave a judgment to hold the polls.
Many believe the top court should not have indulged itself in a political matter, for it would not bring good repute to the judiciary, especially when the court's orders had been disregarded.
Practice and Procedure Act
The tug of war for power between the judiciary and the then-government forced the power corridors to realise that the unbridled discretionary powers of the chief justice to form benches of his choice required rebalancing.
Subsequently, a legislation titled the Supreme Court (Practice and Procedure) Act 2023, was introduced.
Under the proposed law, the chief justice would have to devolve his powers of forming benches to a three-member committee comprising the chief justice and the next two senior-most judges to decide whether a petition filed falls within the ambit of Article 184(3) and thus worthy of the top court's notice. The act also curtailed the chief justice's powers to form benches and the right of appeal in cases lodged under Article 184(3).
Again, the matter landed in the top court by way of a petition under Article 184(3). Then-CJP Bandial hurriedly formed an eight-member bench, which he personally headed and granted a stay order on April 13, even before the act was signed into law. It would not be wrong to say that the judiciary continued working on a stay order for six months until Justice Bandial retired. His successor finally decided the case.
The stay on the case further split the top court. The then-senior puisne judge, Justice Isa, confined himself to chamber work as he wanted the petition challenging the act to be disposed of. He believed it was not just a technical issue but a critical legal matter.
The proposed act was seen as a loud and clear message from the then-then Shahbaz Sharif-led PDM government to the top court. As tensions intensified, the Parliament enacted another legislation to curtail the top judge's powers, namely the Supreme Court (Review of Judgements and Orders) 2023, on May 5, 2023. The law expanded the review jurisdiction to encompass factual and legal aspects within judgments and orders on petitions filed under Article 184(3).
This legislation equated the review jurisdiction with the appellate jurisdiction. Again, a three-member bench headed by then-CJP Bandial and comprising Justice Ahsan and Justice Akhtar scrutinised the legislation and struck it down because it was ultra vires of the Constitution on August 11, 2023.
NAB Law
In May, the PDM government introduced amendments to NAB Law. Former prime minister Imran Khan challenged the amendments. The then-CJP Bandial, Justice Ahsan, and Justice Shah heard the case.
After completing 54 hearings in the case, the Bandial-led bench issued a 2-1 majority decision on September 15, declaring the amendments null and void and ascertaining they infringed upon fundamental rights. Moreover, the Supreme Court ordered the reinstatement and reopening of all corruption cases -- which had been previously closed against political leaders and public office holders per the law.
In his dissenting note on the case, Justice Shah emphasised that such amendments were within the prerogative of Parliament. "The majority judgment has also failed to appreciate that what the Parliament has done, the Parliament can undo; the legislative power of Parliament is never exhausted. If Parliament can enact a person-specific NAB law, it can also repeal the entire law or amend it accordingly," Justice Shah stated.
The September 15 Judgment on NAB law was challenged through an intra-court appeal under the Supreme Court (Practice and Procedure) Act of 2023.
Trying civilians in military courts
With the events of May 9 unleashing a new political reality in the country, the government decided that those civilians involved in attacks on military installations would be tried in military courts, and the matter landed in the courts.
More than 100 civilians were detained and set for trial under Section 2(1)(d) of the Pakistan Army Act 1952 and the Official Secrets Act 1923.
However, Bar councils, civil society, and even a former Supreme Court chief justice, Jawwad S Khawaja, petitioned the top court, challenging the trial of civilians in military courts.
In October, a five-member bench led by Justice Ahsan and comprising Justice Akhtar, Justice Afridi, Justice Naqvi, and Justice Ayesha Malik heard the petitions. It delivered a landmark verdict by a majority of 4-1, declaring the trial of civilians in military courts as unconstitutional and a violation of fundamental rights.
The judgment, by the like-minded judges of Justice (retired) Bandial, was seen as a blow to the establishment.
However, the caretaker government and provincial governments challenged the judgment. On December 13, a six-member bench headed by Sardar Tariq Masood and comprising Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan, by a majority of 5-1, conditionally suspended the verdict against military trials for 103 civilian suspects and ruled that military courts could try the suspects but would not pronounce their final verdict(s) till they decide the case. Justice Musarrat Hilali had dissented.
New traditions in Court Room No. 1
The country witnessed a change of guard at the Supreme Court this year, with Justice Qazi Faez Isa from Balochistan taking over as the new head of the judiciary.
But unlike past transitions, this change has brought a most profound transformation of the court.
After taking oath on September 17, he sought to bring more balance to the court. One major difference compared to the predecessor was that no major relief was afforded to the PTI, except for granting the date of the general elections. Chief Justice Isa led a bench that played a crucial role in securing the February 8, 2024, date for the general elections.
Soon after taking oath as the new chief justice, Justice Isa summoned a full court meeting of the judges. This was the first full court meeting summoned in four years.
Justice Isa focused on correcting past court decisions.
The Practice and Procedure Act case was quickly decided with directions that the power to fix benches would be devolved from the chief justice to a committee comprising the chief justice and two senior-most judges. A 15-judge bench heard the Practice and Procedure Act Case. On October 11, it decided with a 10-5 majority that the act was constitutional and ruled that the parliament has legislative competence to make laws for the Supreme Court. The section of the act regarding the right of prospective appeal was also upheld as constitutional with a 9-6 majority. However, the retrospective effect on the right of appeal was struck down with an 8-7 majority, with Chief Justice Isa dissenting.
He also fixed for hearing long-pending critical cases such as the Presidential Reference on Zulfikar Ali Bhutto's judicial murder, former military ruler Pervez Musharraf's case, the Faizabad Dharna case, IHC's deposed judge Shaukat Aziz Siddiqui's case.
With a lapse of 11 years, a nine-member bench of the Supreme Court commenced proceedings on the matter, prompted by CJP Isa expressing regret over the delayed hearing.
For the first time in the top court's history, scrutiny of a sitting judge of the Supreme Court was initiated in 2023. The Supreme Judicial Council, under the chairmanship of Qazi Faez Isa, proceeded against Supreme Court's Justice Mazahir Ali Akbar Naqvi, who is accused of alleged corruption and misconduct. Justice Naqvi is considered a member of the Bandial camp.
Similarly, for the first time in the Supreme Court's history, case proceedings were broadcast live on national television for the general public to comfortably watch. He constituted a committee to develop a mechanism for live-streaming case proceedings from courtroom No.1.
In 2023, the top court directed that the 190 million pounds, deposited in its accounts in the Bahria Town case, should be transferred to the government.
During the Faizabad Dharna implementation case, the government assured the top court that it had formed a commission to inquire about the motive behind the sit-in. Lt Gen (retired) Faiz Hameed, a former head of the powerful Inter-Services Intelligence (ISI) has been summoned by the commission.
Likewise, the top court in 2023 also issued notices to Lt Gen Faiz Hameed and Brigadier Ramay, another military officer, in the Shaukat Aziz Siddiqui case.
Till December 31, the top court had issued critical decisions relating to inheritance and dowry.
Chief Justice Qazi Faiz Isa also banned the use of the word 'Sahib' with names of government officials. The top court has also banned the use of the word 'August' when referring to the superior judiciary, noting that no such word has been used for it in the Constitution.
Critics, however, note there are pressing issues concerning the violation of basic human rights in the country, which need the superior court's attention more than banning such words.
They complained that even though the chief justice hails from Balochistan, the top court has remained conspicuously silent on the plight of missing persons and enforced disappearances in that province.