The Supreme Court is facing an unprecedented widespread perception that differences among its senior judges are growing starker in the light of recent unusual events — a festering issue which many anticipate might worsen.
A slew of public statements and retorts — and the ensuing controversy — that capped the top court's judicial year has further deepened this perception, raising the eyebrows of many who say the extraordinary sequence of events indicates the court of last resort is divided into camps.
The supposed rifts became all the more pronounced after senior puisne judge Justice Qazi Faez Isa and his colleague Justice Sardar Tariq Masood expressed dismay over Chief Justice of Pakistan (CJP) Umar Ata Bandial’s speech at the new judicial year ceremony, saying he “said much more” than what he was supposed to say at the event.
Apart from other issues, the supposed two camps are facing a brewing mistrust on the issue of judges' appointments. However, legal experts connect the dots back to a number of events in recent years, especially the ‘Justice Isa factor’.
Read more: Body to identify FBR officials responsible for Justice Isa case
It is understood that Justice Qazi Faez Isa's case has severely affected the working of the apex court. The proceedings in the case have negatively affected the relationship between SC judges, who expressed their differences through judicial orders, speeches and letters.
This is in many ways unprecedented as no such divisions were witnessed during the era of former CJP Iftikhar Muhammad Chaudhry under whom no judge had ever dissented on any crucial issue.
Although some clashes between the top court’s judges came to the fore during the ex-CJP Mian Saqib Nisar's tenure, the CJP handled the situation tactfully.
However, Justice Qazi Faez Isa had raised serious questions over the manner in which public interest litigations were initiated by the human rights cell of the top court during Nisar’s tenure. He had also expressed serious concerns over the dissolution and reconstitution of a bench by CJP Nisar at the SC’s Peshawar Registry on May 8, 2018.
After seven months, another judge, Justice Syed Mansoor Ali Shah, called into question the May 8 reconstitution of an apex court bench and called the decision ‘unwarranted and unprecedented’.
Prior to this, Nisar had taken up a constitution petition challenging the appointment of Justice Isa as the chief justice of the Balochistan High Court. However, he later dismissed the petition after lawyers voiced their concerns.
Interestingly, incumbent CJP Umar Ata Bandial was a member of the bench which rejected the petition against Justice Isa's appointment.
In May 2019, another wave of the clash was triggered when Justice Isa raised questions about the conduct of the Supreme Judicial Council led by ex-CJP Asif Saeed Khosa. Justice Isa later went on to accuse the SJC as biased against him.
Subsequently, he challenged the SJC proceedings against him in the apex court. Superior bars, too, joined him in contesting the SJC proceedings against him.
When the apex court took up the petitions against the SJC proceeding, the counsel for Justice Isa said that two judges, namely Justice Ijaz ul Ahsan and Justice Sardar Tariq Masood had a direct interest in the case against Justice Isa. He argued any judge who had a personal stake in the case, should not be attached to it.
However, presiding judge Justice Umar Ata Bandial was visibly upset at the counsel's request regarding the recusal of two judges. However, both judges decided to recuse from the bench.
The matter was referred to ex-CJP Khosa for constitution of the full court. A ten-member full court resumed the hearing of Justice Isa's case.
In June 2020, the majority of the judges referred Justice Isa's family's matter to the FBR for inquiry and a fresh report before the SJC within a specific period of time. Incumbent CJP Bandial had authored a detailed majority judgement wherein Justice Isa's family matter was referred to FBR for inquiry. However, the lawyers had unanimously expressed serious concerns over his ruling.
In April 2021, a majority of the judges overturned CJP Bandial's ruling by accepting Justice Isa and other review petitions. It was witnessed that SC judges also exchanged harsh words during the hearing.
Even CJP Bandial in a minority judgment had held that Justice Isa should have explained his position before the SJC regarding his family properties.
A judgement given by the three judges of the Supreme Court had also expressed serious concerns over Justice Munib Akhtar’s view that the majority judgment in Justice Isa's case was not a binding future legal precedent.
Ex-CJP Gulzar and Justice Isa
The relationship among SC judges went on a low ebb during CJP Gulzar Ahmed's tenure on account of their differences regarding the elevation of junior judges to the SC as well as the exclusion of senior judges from the benches hearing high-profile cases.
Gulzar had passed an unprecedented order that held that Justice Isa should not hear cases related to former prime minister Imran Khan. Interestingly, incumbent CJP Bandial was the signatory of that order.
Secondly, an unprecedented order was passed by then-acting CJP Bandial by annulling the suo motu proceeding initiated by a division bench led by Justice Isa regarding the protection of journalists.
Senior lawyers believe that both orders were unprecedented and uncalled for. The conflict among the senior judges widened after these orders.
During CJP Bandial's tenure, Justice Isa questioned the composition of benches to hear high-profile cases without his consultation. He also expressed serious concern over the summoning of the Judicial Commission of Pakistan (JCP) meeting in his absence as he was abroad on summer vacation.
On July 28, a majority of JCP members did not approve CJP nominees for their elevation to the SC. Later, the CJP initiated dialogue with senior judges on the matter of elevation but deadlock persisted.
Several lawyers believe that the joint letter from Justice Isa and Justice Masood will further create divisions within the apex court and are of the opinion both judges should have refrained from sharing the letter with all JCP members.
A senior lawyer says that it is almost impossible that conflict among SC judges will end in the prevailing situation. However, he urged both sides to work together for the betterment of institutions otherwise history will not remember them with a good name.
Renowned lawyer Hamid Khan however said that issue was started when CJP Bandial expressed his grievance in his speech which was "uncalled for". He said that the CJP was nominating junior judges' elevation to the SC and then expressing grievance regarding JCP members in his speech.
However, he endorsed the CJP's concern that bar representatives should have not influenced the judicial proceedings by requesting the formation of a full court in that case.
He however said that it is the responsibility of the CJP to evolve a consensus among senior judges. Hamid Khan says that elevation to the SC should be based on seniority only.