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Echoes reverberating around Courtroom No 1

Hashim Ali Dogar
Tuesday, Sep 26, 2023

In a maestro stroke, which comes as a surprise to many, Chief Justice Qazi Faez Isa has formed a full bench on the ‘Supreme Court Practice & Procedure Bill, 2023, proceedings of which have already once been televised on national TV.

Picture this: as all eyes lock onto Courtroom No 1 of the Supreme Court, like an audience at a grand theater, anticipation fills the air. People are like eager concertgoers, waiting for the symphony of justice to play its tune. Around this stage of legal deliberation, there’s an atmosphere thick with controversy, like the charged atmosphere before a storm.

The buzz of ‘full court’ and ‘larger bench’ echoes through the corridors of the top court, like the chime of distant bells that herald an important event. Meaning: constitute a bench of all available judges for a court hearing. From the dissolution of the National Assembly in 2022 to the ongoing military courts and NAB amendments saga, these echoes of legal rhythm grow louder. Strangely, the voices chanting these words are those that dance on the edge of the law.

Imagine standing in an historical place, where every corner has a story. Courtroom No 1 is like that – a place where history is written with every argument and verdict. In this tale of legal drama, the plot thickened with the arrival of the ‘Supreme Court Practice & Procedure Bill, 2023’. A new character entered the story, promising to reshape the dynamics of power. This bill aimed to redistribute the authority of the chief justice, making it less of a one-person show and more of a collective performance.

The tension in the plot arose from conflicts among the judges themselves like a Shakespearean tragedy played out in the modern world. These conflicts spilled out onto the public stage, captured by the media, and painted a picture of discord and dissent. The heart of the matter was allegations of ‘favouritism’.

A courtroom turns into a bustling marketplace of emotions and arguments, where allegiances and rivalries are revealed with every statement. While the Supreme Court temporarily halted the bill’s progression pending a verdict on its constitutionality, now-CJP Isa had since declined participation in any suo-motu cases.

At present, the ‘Supreme Court Rules 1980’, enacted by the National Assembly, determine the process. The same assembly that once created the rules now wants to alter them. This shift in rules and procedure was met with resistance from former CJ Bandial, who clung to his authority like a king unwilling to relinquish his crown.

The image of a leader offering candy as a distraction is both amusing and poignant, a reflection of how power can be wielded with both charm and force.

While we trust in the legal brilliance of our esteemed judges, grasping their decisions can sometimes allude us. Scrutiny and doubt towards court verdicts are expected, but lately, they’ve taken the spotlight. A certain political faction persistently questions the integrity and validity of those on the bench, even tainting their reputations. Has the court inadvertently granted more room for such dissent in recent times? Indeed, with internal rifts more evident than ever, this outcome was perhaps inevitable.

Questions and comments that have arisen from the televised hearings reflect the reservations among the presiding judges – that is: when the CJP while addressing the attorney general reminded that the duty of the court was to listen to arguments in light of the law and make a decision, ‘not hypotheticals’. Before the AGP could respond, Justice Munib Akhtar clarified how his comments were a point of law, to determine legality.

In various jurisdictions around the world, like the US, where the full court presides upon cases of constitutional interpretation, different voices sound bleak. A simple reason why. When a majority of the Supreme Court judges decide on any issue, those who disagree are left with no claim. No claim of bias, full court, or larger bench.

In this narrative of legal battles, the voices of dissent have become like a chorus of critics, casting doubt on the integrity of the court. It’s as if the court itself is a protagonist facing internal conflicts and external challenges. These voices of dissent, like rebellious characters in a novel, pose a serious question: Can a judiciary lose its legitimacy despite being lawful? It’s a conundrum that speaks to the heart of a society’s trust in its legal system, like a plot twist that shakes the foundation of the story.

Case in Point: Constitution Petition No 5 OF 2023. The Supreme Court proactively took notice, based on petitions from PTI members, to ensure that Punjab and Khyber Pakhtunkhwa elections adhered to the constitution’s 90-day timeframe. Former CJ Bandial, along with Justices Munib Akhtar and Ijazul Ehsan, directed the ECP to conduct the elections within this period. However, the government’s members preemptively criticized the bench’s stance, rendering the apex court’s decision ineffective.

The consequence: a detrimental precedent for democracy. Given the right alibis, reasons to vilify the bench, and covert support from undisclosed sources, a court’s standing can be effectively nullified.

This instance of undermining the judicial system served as a reminder to the esteemed judges presiding over the ongoing military court case. Mr Faisal Siddiqui, one of the petitioners, advocated for a full bench – an irony not lost on us – as did the attorney general, albeit for different reasons. He invoked the court’s memory of the dire consequences of blatant contempt, urging the establishment of a full bench to safeguard this judgment from burning into ashes.

As the former chief justice rejected Siddiqui’s plea, he cited the unavailability of his colleagues as his rationale. While no fault could be found with Siddiqui’s logic, Justice Bandial noted, “We seek no support but that of Allah Almighty. Regardless of approval or critique, we persist in our duty.” It’s a sentiment both idealistic, utopic and somewhat far-fetched.

A critical juncture beckons in this landscape of legal intricacies and constitutional discourse. It’s a juncture where principles of justice, institutional integrity, and national cohesion intertwine. As the echoes of courtroom debates continue to resonate, it becomes evident that more than mere legalities are at stake.

In the end, it’s not about absolving the courts from critique, nor is it about vilifying those who question. It’s about forging a collective resolve, where introspection fuels progress and constructive dialogue replaces dogmatic confrontation. The path to a stronger judiciary and a more robust democracy demands a delicate equilibrium – one where the guardians of justice listen without prejudice and the critics acknowledge the broader context.

The writer is a law student at LUMS.