Justice seen: Pakistan’s top court and parliament’s new law

The last time Justice Qazi Faez Isa asked the Supreme Court to televise its proceedings, he did so from the other side of the bench — as a petitioner challenging the presidential reference against himself. The 10-member bench agreed in principle, but turned down his request. A protracted legal battle and an oath taking ceremony later, this time, the majority of a rare full court agreed with Pakistan’s new Chief Justice. 

All fifteen judges settled down along the arc of the bench in Courtroom One to decide what to do with parliament’s new creation: the Supreme Court Practice and Procedure Act. 

For some, this wasn’t their first shot at this. In the previous round, the last Chief Justice chose eight judges (including himself) to hear the case. To some, in forming the bench that he did, Chief Justice Bandial made a better case for the law than any legislator could have. After all, the law sought to limit exactly such powers.

Another less cited quote goes something like this: “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.”

- Salaar Khan

Having recently picked up a habit of ignoring the court’s decisions, the government decided to ‘reject’ the bench. Undaunted, the bench suspended the law even before it officially became law — by many accounts, a historically unprecedented move. 

The drama would have made great TV but back then there were no cameras. This time though, the revolution would be televised. 

With just eight provisions, the law fits comfortably within two pages. And of the ideas it contains, arguably, three got it into this mess. As things stand the Chief Justice alone gets to decide who does or doesn’t hear a particular case which can naturally affect the eventual decision. This law forces the Chief Justice to share that power with the two next senior-most judges. 

Second, it seeks to regulate the Supreme Court’s exercise of its ‘original jurisdiction’. While most cases make their way up to the supreme court as appeals from below, in a narrow set of circumstances, the court can also take up a case from scratch. There is, however, no right of appeal in these cases. This law creates such a right. 

And as with the composition of benches, the Chief Justice alone decides when a case will be taken up by the Supreme Court on the court’s own initiative. This law changes that too: it again forces the chief to share that power with the next two senior-most judges. 

Most agree that — in principle — these are all good things. The petitioners before the court accepted as much, and none of the judges seemed to hint otherwise. But even as it remained unsaid, it seemed clear that the trigger wasn’t just what one judge had earlier called the Chief Justice’s “one-man show.” To many, this seemed to be a law designed to limit one particular judge’s “one-man show.” A week after the law was tabled, the government held a press conference calling for the resignation of the “controversial” Justice Bandial. Three days later, a joint sitting of Parliament passed the law. 

Outside the court, it was clear that this was about more than the law. As lawmakers presented the law in Parliament, the Pakistan Tehreek-e-Insaf (PTI) parliamentarians chanted slogans in favor of their party chief Imran Khan. To them, this law was an attempt to blunt the outgoing chief’s final stab at history, one that would perhaps benefit Khan. 

But then, the chief retired. The man who has replaced him was restrained from hearing any cases involving the then Prime Minister Imran Khan in 2021. With the changing of the guard, the petitions before the Supreme Court now basically sought to protect the powers of the ‘wrong’ Chief Justice. But to make matters more bizarre, the new chief seemed all too inclined to give those powers away. 

Whatever the politics, in the courtroom, they aren’t supposed to matter. As far as their judgments are concerned, the judges will only have to ask themselves whether or not Parliament could even pass a law that does all this. Is it not the Supreme Court itself which is supposed to regulate such matters — as it did when it created its own rules in 1980? Could such a right of an appeal be created without a constitutional amendment? And before all of that, can the Supreme Court even hear such a case at all? 

With the proceedings being televised, many approvingly quoted the standard, “Justice must not only be done, but must also be seen to be done.” That may well be true. But another less cited quote goes something like this: “Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.”

We may not yet know what comes out of Courtroom One. But either way, one thing is clear: Whether or not the decision is affected by the politics of today, it’s a decision that will affect the politics of tomorrow.

- The writer is a lawyer. He may be reached at [email protected]. He tweets @brainmasalaar.