Pakistan Supreme Court updates

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CJP cannot overrule judicial order of fellow judges: Justice Faez Isa​

BR Web Desk
April 3, 2023

Justice Qazi Faez Isa of the Supreme Court said on Monday that the Chief Justice of Pakistan (CJP) Umar Ata Bandial has no power to issue administrative directions on a judicial order passed by fellow judges of the apex court, Aaj News reported.

In a letter addressed to the Supreme Court’s Registrar, Justice Faez Isa said that the circular issued on March 31 by his office was against the top court’s three-member bench led by him.

“Needless to say, as a senior officer you are expected to know what the Constitution of Pakistan stipulates, act in accordance therewith and abide by the decisions of the Supreme Court (article 189 of the Constitution.),” the letter read.

Justice Isa, the seniormost judge of the SC after the Chief Justice, noted that the SC Registrar was unfit to hold the office, and advised him to relinquish the post immediately.

“Your conduct demonstrates that you do not have requisite competence, ability and understanding to hold the office of the Registrar. Moreover, a bureaucrat holding the office of the Registrar violates article 175(3) of the Constitution, which mandates the complete separation of the Judiciary from the Executive. […] Therefore, you are advised to relinquish the office of the Registrar immediately.”

The development comes days after CJP Bandial turned down a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan in which they called for the delay of suo motu matters until amendments were made to Supreme Court Rules 1980.

The two judges, while hearing a petition about granting 20 marks to Hafiz students, ruled that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa had said.

In his circular issued on Friday, CJP Bandial noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo motu jurisdiction”.

The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.

“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular.

“Any observations made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” concluded the circular.

The government, on the other hand, tried to use this judgment of Justice Faez Isa in its favour and requested the Supreme Court to adjourn the hearing till the rules of 184/3 are finalised.

However, the CJP clarified that no decision had been withdrawn on the basis of the circular.

Meanwhile, Justice Ijazul Ahsan asked how they could adjourn the hearing when the rules were clear about constitutional petitions.

Yeh to abbi sa Chief Justice bana hoa ha kameena

 

[Rank]

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CJP cannot overrule judicial order of fellow judges: Justice Faez Isa​

BR Web Desk
April 3, 2023

Justice Qazi Faez Isa of the Supreme Court said on Monday that the Chief Justice of Pakistan (CJP) Umar Ata Bandial has no power to issue administrative directions on a judicial order passed by fellow judges of the apex court, Aaj News reported.

In a letter addressed to the Supreme Court’s Registrar, Justice Faez Isa said that the circular issued on March 31 by his office was against the top court’s three-member bench led by him.

“Needless to say, as a senior officer you are expected to know what the Constitution of Pakistan stipulates, act in accordance therewith and abide by the decisions of the Supreme Court (article 189 of the Constitution.),” the letter read.

Justice Isa, the seniormost judge of the SC after the Chief Justice, noted that the SC Registrar was unfit to hold the office, and advised him to relinquish the post immediately.

“Your conduct demonstrates that you do not have requisite competence, ability and understanding to hold the office of the Registrar. Moreover, a bureaucrat holding the office of the Registrar violates article 175(3) of the Constitution, which mandates the complete separation of the Judiciary from the Executive. […] Therefore, you are advised to relinquish the office of the Registrar immediately.”

The development comes days after CJP Bandial turned down a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan in which they called for the delay of suo motu matters until amendments were made to Supreme Court Rules 1980.

The two judges, while hearing a petition about granting 20 marks to Hafiz students, ruled that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa had said.

In his circular issued on Friday, CJP Bandial noted that the observations made by the majority judgment in paras 11 to 22 and 26 to 28 were beyond the matter fixed before the court and “invokes its suo motu jurisdiction”.

The circular noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.

“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular.

“Any observations made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” concluded the circular.

The government, on the other hand, tried to use this judgment of Justice Faez Isa in its favour and requested the Supreme Court to adjourn the hearing till the rules of 184/3 are finalised.

However, the CJP clarified that no decision had been withdrawn on the basis of the circular.

Meanwhile, Justice Ijazul Ahsan asked how they could adjourn the hearing when the rules were clear about constitutional petitions.

Aitezaaz ahsan already said on Friday, No judge follow Justice Qazi order. Other judges are also at the same level, they are not bound to follow Qazi Fraudia ruling.

 

[ghazi52]

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No breakthrough in internal SC dispute​

Egoistic approach of judges leading towards complete superior judiciary breakdown

Hasnaat Malik
April 04, 2023

An egoistic approach of the Supreme Court judges is leading to a complete breakdown in the superior judiciary wherein both sides may be losers.

During the hearing on a matter related to the delay in general elections of the provincial assemblies on Monday, Chief Justice of Pakistan Umar Ata Bandial revealed that he held a meeting with senior puisne Judge Justice Qazi Faez Isa in order to end internal dispute.

He also added that efforts are being made to convene a full court meeting.

Meanwhile, Justice Isa wrote two letters related to removal of the SC registrar on account of issuing a circular which discarded his judicial order.

Likewise, Justice Isa and Justice Sardar Tariq Masood also wrote to the head and other members of the Supreme Judicial Council (SJC) for initiating proceedings on the complaints of misconduct against Justice Sayyed Mazahar Ali Akbar Naqvi.

These developments prove that there is no breakthrough in the meeting held between CJP Bandial and Justice Isa.

Advocate Faisal Siddiqi said that the current judicial cold war among the two groups of judges can now easily be converted into a possible judicial civil war if further judicial orders are passed by restraining rival benches from proceeding with their cases or clarificatory circulars are issued regarding judicial orders.

"Such a judicial civil war will ultimately lead to a complete breakdown of a unitary Supreme Court leading ultimately to what happened in 1997 ie, separate cause list being issued and judges suspending each other’s judicial proceedings.

"But unlike 1997, if such a constitutional breakdown at the Supreme Court level occurs, it is likely that some kind of unconstitutional intervention will take place by a non-political third force, which may ultimately lead to a purging/removal of independent judges from the Supreme Court," Siddiqi said.

He wondered as why the CJP is scared from dissent of judges.

However, another lawyer also wondered whether both sides of the judges are performing duties for the rule of law or to get supremacy from each other.

Irfan Qadir, counsel for the Election Commission of Pakistan (ECP), had also urged CJP Bandial to negotiate with fellow judges and redress their grievances.

Currently, CJP Bandial and President Arif Alvi and the Pakistan Tehreek-e-Insaf are standing on the one side while Justice Qazi Faez Isa, PDM government and establishment on the other.

Lawyers are also divided. The representatives of Professional Lawyers Group are backing the SC section led by CJP Bandial while the Independent Lawyers Group is supporting the other section of judges in the apex court.

Despite demands of senior lawyers, no full court meeting has been being held for the last three years. The CJP is taking all administrative decisions unilaterally.

The Supreme Court is still facing a shortage of two judges. It is being presumed that the CJP has no majority votes in the JCP to approve his nominations for their appointment as SC judges.

There are hardliners on both the sides.

The judges who have balancing views, can play a reconciliation role in the prevailing situation as legitimacy of the institution is at stake. The CJP can also review his policy to include majority of like-minded judges in the larger/special benches.

The current divide within the SC started since Justice Qazi Faez Isa case in May 2019.

Senior lawyers still believed that constitution of a full court comprising all 15 judges is the only solution to end the controversy.

 

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Alleged corruption: Two SC judges urge SJC to proceed against Justice Naqvi​

Justice Isa, Justice Masood ask SJC to proceed on alleged 'misconduct and financial improriety' of Justice Naqvi

Correspondent
April 03, 2023

Two judges of the Supreme Court, Justice Qazi Faez Isa and Justice Sardar Tariq Masood, have written to the Supreme Judicial Council (SJC), urging the top judicial body to initiate proceedings on complaints of alleged "misconduct and financial improriety" against their fellow apex court judge, Justice Sayyed Mazahar Ali Akbar Naqvi.

The SJC is a body of judges empowered under Article 209 of the Constitution to hear cases of misconduct against top judges and hold them accountable. The constitutional body comprises of Chief Justice of Pakistan as its Chairman, two senior-most judges of the SC and the two most senior Chief Justices from the High Courts.

Justice Isa and Justice Masood are both members of the SJC.

In a letter on Monday addressed to the remaining three members of the SJC — Chief Justice of Pakistan Umar Atta Bandial, Sindh High Court Chief Justice Ahmed Ali M Shaikh, and Lahore High Court Chief Justice Muhammad Ameer Bhatti — the two SC judges said that several complaints had been received, including from the Pakistan Bar Council, alleging misconduct and financial impropriety by Justice Naqvi.

Two complaints of misconduct had been filed against Supreme Court’s Justice Naqvi in the Supreme Judicial Council (SJC).

The first complaint was filed by Advocate Mian Dawood in February this year against Justice Naqvi seeking an inquiry into his assets. In the complaint, Dawood had accused the judge of "misconduct" and "amassing illegitimate assets".

The second complaint was filed by the Pakistan Bar Council (PBC), the apex regularity body of lawyers, last month after audio leaks emerged purportedly featuring a conversation about the fixation of a case before a particular bench or judge with former Punjab chief minister Pervaiz Elahi.

The PBC in its complaint had maintained that the superior judiciary was already “under criticism” and the “audio leaks attributed to the respondent may have not pricked the conscience of the respondent judge but the Pakistan Bar Council has taken the matter with great concern for the sake of respect and dignity of the superior judiciary of Pakistan”.

It had urged the judicial accountability body to hold an inquiry and initiate “proper proceedings” on media reports of Justice Naqvi’s “assets worth crores of rupees”.

In the letter today, the two SJC member noted that they had been waiting for the Chief Justice of Pakistan to take notice of the complaints and call a meeting of the judicial body over the matter.

“Hon’ble Chief Justice [Umar Ata Bandial], we were waiting for you to convene a meeting of the Council to consider the complaint and to ascertain whether there is substance in the stated allegation we must exonerate the respondent judge and fully restore his honour or else submit our report in terms of the Constitution," the two judges wrote in their letter.

"To leave the respondent judge under a cloud of uncertainty undermines both his and the judiciary’s repute,” they further stated.

 

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Editorial: The chief justice has a tricky conundrum to solve and he remains under immense scrutiny​

It is hoped that the CJP will find a way out of this crisis while keeping the integrity of his institution intact.

WHAT new turn will the Supreme Court saga take today? A three-member bench of the Supreme Court is due to announce its verdict in the elections delay case, but the case’s proceedings were dogged by so much drama and controversy till the very end that no stakeholder will realistically be expecting the matter to be settled with a simple order from the court.

It was quite difficult to tell from Monday’s proceedings which way the court was leaning. There were indications that it was quite unsatisfied with the government’s justifications for delaying the KP and Punjab assembly elections over the pretext of not having enough security personnel or adequate financial resources for the electoral exercise.

Still, there is a possibility that the apex court may not take a categorical position for now due to the ongoing controversy over the chief justice’s discretionary powers and leave the matter to be decided at a different forum.

The question of a full court or larger bench deciding the maintainability of the elections delay case — which arose after several other Supreme Court justices publicly objected to the chief justice invoking suo motu jurisdiction on the matter and then constituting the benches to hear it at his own discretion — also remains unsettled.

Both the government and the ECP again demanded on Monday that the matter be taken up by the full court before the bench can rule on whether or not elections can be delayed.

However, though Chief Justice Umar Ata Bandial indicated that he had reached out to his fellow judges and may be considering summoning the full court to set rules regarding suo motu powers and bench constitution, he suggested to the defendants that they ought to be seeking a larger bench to resolve the ‘4/3 or 3/2’ debate, as it has come to be known. But though he invited arguments in support of the proposal, it appears that the court eventually decided to reserve its verdict without making any decision on the matter.

It is, admittedly, all rather confusing — even for those who have been following the proceedings closely. The chief justice has a tricky conundrum to solve and he remains under immense scrutiny. It is hoped that he will find a way out of this crisis while keeping the integrity of his institution intact.

Again, it seems like a reasonable idea to convene the full court and settle the matter firmly once and for all. The question of when elections are to be held is one that concerns the citizenry’s fundamental rights.

However, the court has gotten entrapped in another debate altogether, which has made it difficult to rule on the original, rather pressing matter. The full force of its members may just be able to extricate it from the quicksand.

Published in Dawn, April 4th, 2023

 

[ghazi52]

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It is now important that full court be convened to settle all remaining post-poll verdict questions​

THE nation would have greatly benefited had the judiciary presented a united front in these divisive times. Instead, the chief justice went with a smaller, three-member bench of the Supreme Court to rule that the ECP’s March 22 order postponing the Punjab Assembly elections to Oct 8 was “unconstitutional, without lawful authority or jurisdiction, void ab-initio, [and] of no legal effect”.

The court has now brought forward the election date to May 14, issued a revised schedule and set hard deadlines for the release of funds and finalisation of security plans. It has also opened the door for appeals against the similar postponement of the KP polls.

While there is nothing in the court’s ruling that can be considered ‘sensational’ per se — the Constitution was always rather clear about the 90-day deadline — the chief justice’s decision to issue the elections delay case verdict through a diminished bench may worsen both the divisions within his institution, as well as the ongoing stand-off with the incumbent government.

The government and the ECP had adopted very similar lines of argument to repeatedly press the chief justice to convene a full court to hear the elections delay case. They had objected to the chief justice taking suo motu notice of the original delay caused by the Punjab and KP governors’ unwillingness to issue election dates and argued that it would be better for the full court to speak as one voice on the matter.






Their demand became especially pertinent after multiple Supreme Court justices made observations or issued opinions challenging the chief justice’s “one-man show” in appointing benches and taking suo motu notice.

Forming a full court may have nipped in the bud most of the controversies that are now expected to follow. Tuesday’s developments also indicate that the differences between the top judges may have hardened and may be far from being resolved.

Be that as it may, it ought to be pointed out that none of the Supreme Court judges, at any point, ever questioned the Constitution’s 90-day deadline. Their objections were related mainly to the chief justice’s sole discretion over suo motu powers and the way the benches have been formed.

The verdict issued by the three-member bench is, therefore, what any verdict issued by a larger or full court bench would have been if it was asked whether or not the Constitution allows the ECP to delay elections on its own. There is, therefore, little logic in resisting or, worse, ‘rejecting’ the verdict.

The chief justice, meanwhile, still has a chance to salvage the situation. He should not continue to ignore the concerns being raised from within his court and without. It is important that the full court be convened post haste to settle all remaining questions.

 

[ghazi52]

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Six judge SC bench note cannot set aside order on suo motu: Justice Isa​

• Decisions overcast with the shadow of autocracy cannot displace the Constitution, says Justice Qazi Faez Isa

BR

Supreme Court Senior Judge Justice Qazi Faez Isa said on Saturday that a six-member bench of the top court could not set aside an earlier order to stop suo motu proceedings in the top court, Aaj News reported.

A three-judge bench, headed by Justice Qazi Faez Isa, and comprising Justice Amin-ud-Din Khan and Justice Shahid Waheed on March 29 with a majority of 2 to 1 held that hearing of all the cases under Article 184(3) of the Constitution be deferred until the changes are made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.

The order said neither Constitution nor the rules give CJP the power to make special benches or select judges who will be on these benches. “The rules do not grant any power to Registrar or to the Chief Justice to change the judge or judges on the Bench or to reduce their number,” said the order.


The order said the matter be postponed until the framing of SC rules. With regard to article 184(3) of the Constitution, the order said that there are three categories of cases. “Firstly, when a formal application seeking enforcement of Fundamental Rights is filed.

Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases.

However, a three-judge which announced the judgment on the Punjab elections held that they “wholly unaffected by any observations made in the majority order.”

The six-judge order said: “We are in no manner of doubt that the order dated 15.03.2023 invokes suo motu jurisdiction of this Court and is therefore, clearly violative of the principles settled in a five member judgment of this Court recorded in SMC No.4 of 2021, which clearly and categorically lays down the rule that the suo motu jurisdiction of this Court can only and solely be invoked by the CJP.

The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that the Chief Justice is the master of the roster.

The order was; therefore, both without and beyond jurisdiction. “Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two members of the Bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so.”

It appears that the order was brought to the notice of the HCJP who was pleased to observe as follows: “The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the list before the Court and invokes its suo motu jurisdiction.

In a nine-page note issued today, Justice Isa maintained that since the gathering in a court of six distinguished judges was not permissible under the Constitution or under any law, “the Supreme Court’s order dated 29 March 2023 passed in Case No 4 could not have been set aside by the 4 April Note”.

“Decisions emanating from a courtroom overcast with the shadow of autocracy cannot displace the Constitution," it added.

“The very day the case roster was issued the matter was also listed, and after court-time; No prior notice of the listing of the matter was issued; Notice was not issued to the Attorney-General for Pakistan as per Order XXVIIA of the Code of Civil Procedure, 1908,” read the note.

 

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Justice Minallah commits gross impropriety​

justice minallah

JUSTICE MARKANDEY KATJU ..
7 APRIL 2023

By Justice Markandey Katju​

By issuing a detailed 26-page note attacking his Chief Justice in connection with the petition against postponement of elections in Punjab and KP, Justice Athar Minallah of the Pakistan Supreme Court has committed gross impropriety and indiscipline.

It is a long-standing, well-established, unwritten convention in the judiciary that sitting judges should only speak through their judgments, and not go into the public domain. By issuing this note Justice Minallah has flagrantly violated that convention, and shown lack of the self restraint expected of judges of a superior court.

In this connection, one may mention an incident in judicial history.​

Lord Atkins, a judge of the British House of Lords, wrote a famous dissenting judgment in Liversidge vs Anderson (1942) A.C.206. One of his brother judges on the bench, Lord Maugham, issued a press note criticising Lord Atkins’ judgment. For this undignified behaviour, Lord Maugham was severely criticised and not given any further judicial assignment in England..

Justice Minallah in his note has said that political disputes should be left to be decided by Parliament, and the judiciary should not hear such cases. What he forgets is that some disputes are not purely political but are politico-legal.in nature, and these latter have to be decided by the court.

The case before the Pakistan Supreme Court was of the latter kind. It sought enforcement of Article 224(2) of the Pakistan Constitution, which says that elections to a Provincial Assembly must be held within 90 days of dissolution of the Assembly.

The Punjab Assembly had been dissolved on18th January, and therefore elections should have been held by 18th April, but the Election Commission of Pakistan, obviously under some pressure, had postponed them to 8th October, a clear transgression of Article 224(2).

Should the Court not have enforced Article 224(2) and stood silent?​

Justice Minallah’s logic is that since this is a political matter it should have been left to Parliament to resolve. But the Pakistan Parliament is dominated by the ruling PDM which does not want early elections, since it would be routed by Imran Khan’s PTI ( as all opinion polls indicate ). Hence without the intervention of the court Article224(2) would have remained unenforced

Justice Minallah says by giving such a judgment the court is a loser. But how? Does the court become a loser by enforcing the Constitution?

On the contrary, in my opinion, its prestige goes up.

Justice Minallah has delivered sermons and homilies in his note e.g. that one should not have ego. In fact he reveals his own inflated ego and lack of any sense of propriety by publicly attacking his own Chief Justice, just because he was not kept in the 5 member bench.

I too have been a judge ( of the Allahabad High Court and Supreme Court of India ), but I never objected to being placed on any particular bench by the Chief Justice, or not being placed on any particular bench.

Justice Minallah says that the Full Court of the Supreme Court ( i.e. all judges sitting together ) should have heard the case. Surely he is senior enough to know that constitution of benches is the sole prerogative of the Chief Justice, who is master of the roster. The Chief Justice alone decides which judge will sit on which bench, and how many judges will be on a particular bench.

While delivering a lecture in his note that judges should not dabble in politics ( which the 3 judge bench did not do, but only enforced a constitutional provision ), he himself dabbled in politics by saying in his note that Imran Khan and PTI members should not have resigned from Parliament, Imran Khan should not have dissolved the Punjab and KP Assemblies, etc, etc.

I regret to say this, but Justice Minallah has displayed his total lack of fitness to be a judge.

 

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Why the CJP needs to work on his skills to regulate emotions​

COURTING EMOTIONS​

Nadeem F. Paracha
April 9, 2023

The image of a sitting judge shedding tears in a courtroom is a rather awkward one. Judges are not supposed to exhibit any overt emotions in the courtroom. But on March 30, 2022, media personnel covering the suo moto hearings against the Election Commission of Pakistan (ECP) at Pakistan’s Supreme Court reported that the Chief Justice of Pakistan (CJP) Umar Ata Bandial broke down while alleging that his family and families of some other judges were being humiliated.

He lamented that he was under a lot of stress. At least four senior judges of the Supreme Court have publicly questioned his style of judging and also his insistence on formulating panels that largely include ‘brother judges’ who are always likely to agree with him.

Everyone present in the courtroom was taken aback by the CJP’s emotional display, as were the court reporters. They were all left scratching their heads, wondering whether the CJP was ‘fit’ to head a highly charged suo moto hearing that has become the latest expression of the heated tussle and tension between the current coalition government and Imran Khan — the former prime minister who was ousted last April through a vote of no confidence.

The government has often accused some Supreme Court and high court judges (including the CJP) of having a ‘soft corner’ for Khan and for constantly ‘providing him relief’ in the various cases that he is facing.

While it may be near impossible for judges to remain rational, objective and emotionless at all times, the chief justice’s tears in court have not set a good precedent

By the time this column goes into print, the CJP must have already given his verdict. It is likely to be intensely contested, thus deepening a political crisis of which the courts too have become a party. Whatever the verdict, one way or the other, it is bound to trigger anger either in the government, or in Imran’s party. But those who were questioning the maintainability and the quality of a hearing headed by an ‘emotional judge’ were justified.

In the 2013 issue of Northern Ireland Legal Quarterly, professor of law Terry A. Maroney wrote that, traditionally, the absence of emotion is a marker of judicial competence. In a 1994 article for The New Republic, the former US attorney general Jeffery Rosen wrote, “Calling a judge emotional is considered a stinging insult.”

According to Maroney, the dichotomy between reason and emotion is highly relevant to law. As law was aligned with reason, it necessarily was positioned as the opposite of emotion.

In 1988, the former Associate Justice of the US Supreme Court William J. Brennan wrote that judges fulfilled their responsibility by “taming the emotions of litigants, ignoring those of the public, and divesting themselves of their own.”

An entirely rational judge is an ideal that was formed by the 18th century ‘Age of Reason’ or the Enlightenment. According to Maroney, this ideal can be hard to emulate. In 1944, an associate judge of the US Supreme Court Robert H. Jackson wrote, “Emotionless judges are mythical beings like Santa Claus.”

Maroney agrees that there are no truly emotionless judges as such.

In his 1930 book Law and the Modern Mind, the legal philosopher Jerome Frank claimed that, “Judges routinely were led astray by childish emotional drives and fantasies and should instead inspire to emotional maturity.”

It isn’t that ‘emotional judges’ have found some sort of universal acceptance. Far from it. But debates around the ideal of an entirely rational and emotionless judge have produced some interesting outcomes. Maroney mentions the need for judges to ‘regulate emotion’, either by preventing its emergence or by walling off its influence.

In a 2022 study in the journal Psychiatry, Psychology and Law, KM Snider, PG Devereux and MK Miller wrote that though the ideal of a dispassionate judge persists, judges are regularly exposed to a wide range of emotions and stressors in the course of their work. But most judges are known to regulate emotions (instead of suppressing them altogether).

The study explores how judges regulate their own emotional experience in court. Judges reported using a variety of intrinsic (self-directed) and extrinsic (directed toward others) emotion regulation strategies. Some reported using strategies such as suppression of emotions more frequently than others.

Many judges also reported that emotion regulation is a difficult and unacknowledged part of their work, and is an area in which they lack formal training. According to the study, managing or regulating emotions is an important role. It is a skill that is needed for displaying impartiality. The study concludes that providing training to judges to assist them in their emotional regulation efforts can ultimately improve both the legal setting and the professional experiences of judges in and out of the courtroom.

Indeed, the ideal of the entirely rational, objective and emotionless judge is an almost impossible one to follow. But, as we have seen, most law scholars who understand this and empathise with the role of judges also see the display of emotions by a judge or the possibility of emotions influencing their judgments as a serious issue. They emphasise the increasing need to facilitate the skill of judges to regulate emotions in courtrooms and within themselves.

Another question that arises is, what if, instead of the CJP, it were the newly appointed Chief Justice of the Peshawar High Court Musarat Hilali who had shed tears in the courtroom? Hilali is a woman. There is every likelihood that criticism against her would have been brutal. In a May 2011 study for the Journal of Politics, the political scientist Dr. Deborah J. Brooks wrote that responses differ when people see a male candidate shedding tears and when they see a female candidate doing the same.

According to Brooks, female politicians believe that they have to try that much harder not to cry in public, because they would be seen as being weak, vulnerable and ‘sentimental’. On the other hand, a male politician is more likely to get away with it. In fact, as is often the case with Turkey’s president Recep Tayyip Erdogan, if a male politician sheds tears, he is likely to be perceived as being ‘human’, whereas a woman politician may come across as being ‘too emotional’ (and thus not fit for a political position).

The CJP has not set a good precedent. He needs to work on his skills to regulate emotions, especially when they are running high in a crisis-laden country. Demonstrating emotions may also be perceived as a way to attract sympathy. Judges need to attract admiration for their impartiality and their skill to be the voice of reason in a charged atmosphere. Not for becoming yet another wailing voice in an environment already full of wailers.

 

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Why did the Supreme Court’s decision to hold polls in 90 days create a greater mess than it cleaned up?​

Basil Nabi Malik
April 14, 2023

WE have been witnessing vocal debates about whether the Supreme Court’s suo motu action regarding the elections was dismissed by a majority of four judges to three or allowed by a majority of three judges to two.

With the issuance of the detailed reasons by Justice Afridi and Justice Minallah, the debate seems to have gained greater traction, and perhaps, is ripe for a riveting article dissecting it. But I am not going to do that. Firstly, because I am not sure how riveting any such article could ever be, and secondly, it is a red herring.

In fact, talking about which permutation or combination of bench majority is binding is the state equivalent of a defaulting Pakistan refusing to take advice from one of the top economic minds in the world due to reasons of faith. Everyone acknowledges that the economist is great, but unfortunately, because we are so engrossed by details irrelevant to his expertise, we fail to use his expertise at all. In simple words, we are missing the forest for the trees.

And we continue to do so even today. The actual issue isn’t which bench is to be followed. Irrespective of which one you end up backing, the result is the same — elections should be held in 90 days, or as close to it as possible. Hence, the debate is somewhat dated.

The real issue which needs our attention is the significance of what was said by the judges on either side of the divide. The great divide, so to speak, lies in how two sides of the same coin reflect alternative realities. One set of judges is focusing on doing justice, but without too much attention to palpable perceptions of partiality. The other side is focused on the latter, and feels that without addressing concerns of bias, any judgement would be of shaky credibility.

And they appear to be right. After all, few commentators can dispute that the bench headed by the chief justice made the correct decision on the merits of holding that elections ought to be held in 90 days, or as close to it as possible. But despite this, the decision created an uproar. It created a greater mess than was cleaned up, and actually weaponised calls for ‘rejecting’ it and subsequent decisions, which as mentioned here, were mostly sound. Why was that?

The answer lies in credibility. The Constitution assigns a key role to the judiciary. As a constitutional organ, the judiciary is to act as a neutral arbiter to disputes that occur between parties. They are the safety valve to difficult situations where institutions, parties, or individuals are at loggerheads. However, what happens if the arbiter himself appears to become a party to the dispute? Or in the words of Justice Minallah, what happens “when the court is perceived as politically partisan and the judges as ‘politicians in robes’”?

There is a loss of credibility and acceptability. The legal principle that advocates justice not only being done but also being seen to be done has its roots in a dictum laid down by Lord Hewart in the case of ‘Rex vs Sussex Justices’. In this case, the deputy clerk of the bench before which the case was fixed was connected to the law firm engaged by one of the parties. At the hearing, the deputy clerk retired with the justices, presumably for deliberations, which then returned a verdict in favour of the party whose counsel was connected to the deputy clerk.

Although it was established in the appellate forum that the deputy clerk did not participate in any discussion, and therefore, did not influence the proceedings in any manner, Lord Hewart quashed the proceedings by holding that “justice should not only be done but should manifestly and undoubtedly be seen to be done”.

Now imagine if Lord Hewart had, instead, banged his table, asserting that no one could dictate to the court as to who would be present or presiding over the matter. Imagine if the bench had censured the aggrieved party, all the while expecting him to assume impartiality despite what it may look like.

And add to this a judicial context of historical intrigue: the legitimisation of military rule and a long-standing perception of being an accomplice to political engineering. What you would have gotten is a crisis of legitimacy and the urgent need for a principle like the one espoused by Lord Hewart. And thank God that he did.

Arguments against it usually take shelter behind the rhetoric of the autonomy of the judiciary and not letting anyone dictate terms to the institution. But that is as disingenuous now as it was back then when chief justice Anwarul Haq used it in relation to the murder trial and proceedings of Zulfikar Ali Bhutto.

In fact, nothing erodes the independence of a court more than the perceived loss of neutrality or what many think of as agenda-driven decision-making.

This is especially true at this troubled juncture in our history, where the wisdom and maturity of the Supreme Court is direly needed. Coincidentally, we are lucky enough to have some truly outstanding minds in the Supreme Court at this time — minds that are perhaps just as qualified and knowledgeable as the next.

When blessed with such a rich and diverse roster of justices, it is ill advised, to say the least, to forego the collective wisdom of the many in favour of the seemingly ‘like-minded’ understanding of a few.

In continuing to do so, we would be exposing the Supreme Court to further controversy, so much so that one would hardly be able to blame anyone for questioning as to why the public seemingly has a greater level of faith in the collective wisdom of the justices rather than the Master of Rolls himself. It would be a valid question. Tragic, but valid.

The writer is a lawyer based in Karachi.

basil.nabi@gmail.com

 

[ghazi52]

.,.,.

‘Mischievous and malicious’: SC issues stern rejoinder refuting ‘false news report’ about altercation between judges​

Haseeb Bhatti
April 14, 2023

The Supreme Court on Friday issued a sternly worded rejection of an “utterly false news report” regarding an “alleged altercation” between the apex court’s judges.

The apex court notice did not mention any specific report.

The notice said that an “utterly false news report regarding an alleged altercation and scuffle between judges of the Supreme Court of Pakistan during their walk in the evening on April 13, 2023, in the Judges’ Colony Park” was carried and highlighted through various social media platforms.

Multiple social media accounts had narrated this version of events on Thursday.

“The report is hereby refuted in the strongest terms,” the notice said, adding that it was “false, mischievous and malicious” and no such incident took place.

“The fake reporting about the judges of the Supreme Court of Pakistan is a serious violation of the law and represents an effort by disaffected elements to diminish the dignity of the court and its honourable members,” the notice stated.

The perception of division and bitterness among the apex court judges had become stronger amidst a spate of letters and a judicial note written by Justice Qazi Faez Isa, questioning the conduct of the Supreme Court registrar and declaring a recent order by a six-judge Supreme Court bench as unconstitutional.

On the other hand, against the backdrop of speculations about a divided house, a thaw was witnessed on Tuesday when Justice Isa held a meeting with Chief Justice of Pakistan Umar Ata Bandial at the latter’s chambers, which lasted 30 minutes.

A source privy to the development had told Dawn that the meeting was held in a congenial atmosphere, and the perception of widening fissures within the judiciary, and ideas to improve the image of the judiciary and restore citizens’ trust came under discussion.

 

[ghazi52]

.,.,.,

No 'exclusive suo motu powers' for CJP, says Justice Isa​

Senior judge says powers lie with entire SC, not individuals

News Desk
April 19, 2023

ISLAMABAD: Senior puisne judge of the Supreme Court (SC) Justice Qazi Faez Isa said on Wednesday that the Constitution empowers the apex court as a whole to take notice of cases of original jurisdiction (suo motu), and not just the top judge.

Speaking at an event commemorating the golden jubilee of the Constitution, Justice Isa stressed that the book "is not to serve the interests of a select few people, politicians, parliament or the judiciary, but the people".

Notably, Justice Isa had led the bench that had previously ruled that the "Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches" ordered suspending all suo motu cases — under Article 184(3) of the Constitution — until amendments were made to the SC rules governing the chief justice's discretionary powers.


The SC had later "disregarded" the judgment, leading tensions to boil as parliament pushed through the Supreme Court (Practice and Procedure) Bill 2023 only to be suspended by the SC.

“The meaning of the SC in Article 184(3) is that all judges and the chief justice unanimously [invoke original jurisdiction]", he said, adding that "my opinion is not important, the opinion will be that of the Constitution."

"I could be wrong but in Article 184(3) the word suo motu does not even exist," he said, explaining that it only included matters of "public interest" and the provision of "fundamental rights".

"The way I understand it is that this space was left for the oppressed, for the brickkiln workers, for bonded labourers, for women denied an education and children forced into labour" because ordinary legal provisions could not tend to their plight, he said.

"Sometimes this provision has been used for very good purposes but sometimes for really bad ones," he added.

Justice Isa held that suo motu notices should be dealt with "great care" when invoked because there is no constitutional space for appealing against it so that "one party may benefit but another may be harmed".

He also acknowledged that some of his colleagues believe that "only the chief justice has the power" to take suo motu notices and act as "master of the roll" but responded by saying that "the Constitution does not state this".

He also said that "egos" should be set aside in deciding such matters.

'A dark history'

He also reflected on the 'Fall of Dhaka' as a dark chapter in the history of Pakistan, he said that the spilt between Pakistan and Bangladesh was not "sudden" in 1971, as he maintained that its seeds were sown by Justice Munir in February 1974 when Sheikh Mujib was invited to the second Organisation of Islamic Cooperation conference.

“Whether Justice Munir’s decision was right or not should be decided by a referendum. History has taught us seven times. The Constitution is a heavy burden on us, we have taken an oath to protect the Constitution,” he said.

He also spoke of the inclusion of Article 58(2b) later during the dictatorial regime of Ziaul Haq.

“For his protection, he [General Ziaul Haq] inserted another constitutional article that came to be known as Article 58(2b), so that when he wishes, he can dismiss an elected government,” Justice Isa said, terming the provision "another seed of hatred".

Justice Isa also highlighted that the same article was later used twice by the next president Ghulam Ishaq Khan, once against Benazir Bhutto’s government and the next time against Nawaz Sharif’s.

"It also brings some shame to me that the Supreme Court kept on supporting these steps. It was challenged that the resolution is wrong but they (the SC) said ‘Let’s move on’,” said Justice Isa.

He also included Gen Parvez Musharraf in his criticism mentioning not only his "Proclamation of Emergency" but also his introduction of Article 270AAA .

Nonetheless, the senior judge stressed that in his opinion, the purpose of the Constitution was to serve the interests of the people and hoped that the critical juncture would allow Pakistan to break free from the mistakes of the past.

 

[JackTheRipper]

.,.,.,

No 'exclusive suo motu powers' for CJP, says Justice Isa​

Senior judge says powers lie with entire SC, not individuals

News Desk
April 19, 2023

ISLAMABAD: Senior puisne judge of the Supreme Court (SC) Justice Qazi Faez Isa said on Wednesday that the Constitution empowers the apex court as a whole to take notice of cases of original jurisdiction (suo motu), and not just the top judge.

Speaking at an event commemorating the golden jubilee of the Constitution, Justice Isa stressed that the book "is not to serve the interests of a select few people, politicians, parliament or the judiciary, but the people".

Notably, Justice Isa had led the bench that had previously ruled that the "Supreme Court Rules, 1980 (the Rules) neither permit nor envisage special benches" ordered suspending all suo motu cases — under Article 184(3) of the Constitution — until amendments were made to the SC rules governing the chief justice's discretionary powers.


The SC had later "disregarded" the judgment, leading tensions to boil as parliament pushed through the Supreme Court (Practice and Procedure) Bill 2023 only to be suspended by the SC.

“The meaning of the SC in Article 184(3) is that all judges and the chief justice unanimously [invoke original jurisdiction]", he said, adding that "my opinion is not important, the opinion will be that of the Constitution."

"I could be wrong but in Article 184(3) the word suo motu does not even exist," he said, explaining that it only included matters of "public interest" and the provision of "fundamental rights".

"The way I understand it is that this space was left for the oppressed, for the brickkiln workers, for bonded labourers, for women denied an education and children forced into labour" because ordinary legal provisions could not tend to their plight, he said.

"Sometimes this provision has been used for very good purposes but sometimes for really bad ones," he added.

Justice Isa held that suo motu notices should be dealt with "great care" when invoked because there is no constitutional space for appealing against it so that "one party may benefit but another may be harmed".

He also acknowledged that some of his colleagues believe that "only the chief justice has the power" to take suo motu notices and act as "master of the roll" but responded by saying that "the Constitution does not state this".

He also said that "egos" should be set aside in deciding such matters.

'A dark history'

He also reflected on the 'Fall of Dhaka' as a dark chapter in the history of Pakistan, he said that the spilt between Pakistan and Bangladesh was not "sudden" in 1971, as he maintained that its seeds were sown by Justice Munir in February 1974 when Sheikh Mujib was invited to the second Organisation of Islamic Cooperation conference.

“Whether Justice Munir’s decision was right or not should be decided by a referendum. History has taught us seven times. The Constitution is a heavy burden on us, we have taken an oath to protect the Constitution,” he said.

He also spoke of the inclusion of Article 58(2b) later during the dictatorial regime of Ziaul Haq.

“For his protection, he [General Ziaul Haq] inserted another constitutional article that came to be known as Article 58(2b), so that when he wishes, he can dismiss an elected government,” Justice Isa said, terming the provision "another seed of hatred".

Justice Isa also highlighted that the same article was later used twice by the next president Ghulam Ishaq Khan, once against Benazir Bhutto’s government and the next time against Nawaz Sharif’s.

"It also brings some shame to me that the Supreme Court kept on supporting these steps. It was challenged that the resolution is wrong but they (the SC) said ‘Let’s move on’,” said Justice Isa.

He also included Gen Parvez Musharraf in his criticism mentioning not only his "Proclamation of Emergency" but also his introduction of Article 270AAA .

Nonetheless, the senior judge stressed that in his opinion, the purpose of the Constitution was to serve the interests of the people and hoped that the critical juncture would allow Pakistan to break free from the mistakes of the past.

Was he dead on Imran Khan days?

 

[ghazi52]

,.,..,

If Constitution says polls in 90 days, we are duty-bound to say it: CJP Bandial​

Dawn.com
May 7, 2023

Chief Justice of Pakistan Umar Ata Bandial on Sunday said that the judges of the Supreme Court could not “blink” their eyes if the Constitution mandated polls within 90 days of an assembly’s dissolution, adding that it was their duty to say that.

Last month, the Supreme Court — while hearing a PTI petition — had directed the Election Commission of Pakistan (ECP) to hold general elections to the Punjab Assembly on May 14. However, the government had rejected the apex court’s orders.

After repeated back and forth last week, the Supreme Court on April 20 afforded a temporary respite to the country’s main political parties, giving them time till April 26 to develop a consensus on the date for elections to the provincial and national assemblies, so they could be held simultaneously across the country. Negotiations subsequently followed between the government and the PTI but remained inconclusive. The PTI and the government have since provided their reports about the negotiations to the Supreme Court, and a judgment is expected in the case.

Speaking at an event in Lahore on Sunday, the chief justice said: “When it comes to constitutional enforcement we must not blink our eyes. If it says 90 days for holding elections, [then] it is our duty to say that and not our choice, instead of finding a reason why we should avoid saying that.”

The chief justice said the matter was being called a “controversy”. “I’m sorry, I’m not worthy of controversy, I’m a very humble person. Please don’t say that you support us. I’m just one of the members of the Supreme Court. You must support the Supreme Court if you stand up for the law and the Constitution and not [for] any individual,” he added.

The chief justice said the Supreme Court and its judges had no existence individually but “as a unit [and] as a constitutional organ and that is how we function”.

“The important thing is when the Supreme Court speaks on merit then its judgement has moral authority. That becomes even more important when those judgements are not appealed or no review is filed then that means no one has any objection to the judgement.

“If a review is filed then it will be heard because no judgement is binding unless it becomes final. But if a judgement is not challenged then it becomes final so let’s see what happens now,” the chief justice said.

CJP Bandial said he was “optimistic” that the nation’s leaders, institutions and people were all “committed to the Constitution”.

Referring to the negotiation process between the government and the PTI, he said the apex court was informed that they had not concluded yet.

“We have nothing to do with that but at least they are conscious that they have a duty to comply [with] the Constitution and we are there to support that effort otherwise our judgement is there, it has a force of its own, it may not be implemented today but it will last to the test of time and shall be implemented tomorrow,” the chief justice pointed out.

Concluding his speech, CJP Bandial said: “The implementation bench is always there so file an application and let’s see what happens.”

Minority rights​

CJP Bandial said the Constitution assured freedom to profess religion and to manage religious institutions subject to public order and morality.

“Our Constitution in Article 21 safeguards against the taxation of any particular religion. So for no particular reason can other religions be taxed,” he said. “Article 22 safeguards educational institutions in respect of religion. No religious instruction or ceremony in any educational institution other than one’s own religion.”

The chief justice added that no citizen could be denied admission on the grounds of caste, race, religion, place, or birth to educational institutions which received aid from public revenues.

“Our Constitution says everyone is free to profess their religion, and all citizens have equal rights and yet for years our minorities have felt discriminated, marginalised and sidelined.

“In 2014, SC under CJP Tasaduq Jillani took up this challenge and came up with directions to protect the rights of minorities. Directions about curriculum, to ensure there is no hate speech against religions, establishing taskforce and special police force to protect places of worship, education quota in institutions were given.”

CJP Bandial highlighted how for many years these directions were carried out by former police officer Shoaib Suddle, a court appointee.

“Today the minorities see that judgment as an umbrella for their rights,” he said, shedding light on how incidents of violence against minorities over sectarianism had also diminished.

Election impasse​

On April 26, Prime Minister Shehbaz Sharif reiterated that simultaneous elections will take place in October or November after the current National Assembly completed its term on August 13, whereas parliament will have the final say regarding the initiation of talks with the opposition.

The government wanted to talk to the PTI, he had said, adding that there was an overwhelming opinion that the doors of dialogue should not be closed, but its format was yet to be decided. “The decision [regarding talks] has to be taken by parliament, not you or me,” he added.

Subsequently, Senate Chairman Sadiq Sanjrani had formed a committee with four members each from both the ruling coalition and the opposition for dialogue.

Dar, former prime minister Yousaf Raza Gilani, PML-N’s Khawaja Saad Rafique, Azam Nazeer Tarar and Sardar Ayaz Sadiq along with PPP’s Syed Naveed Qamar represented the government in the negotiations. Muttahida Qaumi Movement’s Kishwar Zehra and Pakistan Muslim League-Quaid’s Tariq Bashir Cheema were also included in the government’s negotiating team.

Meanwhile, the opposition delegation consisted of the party’s Vice Chairman Qureshi, Senior Vice President Fawad Chaudhry, and Senator Ali Zafar.

In the reports submitted to the apex court after the negotiations, the PTI stated that no resolution was reached and requested that the court enforce its April 4 order regarding elections in Punjab while the government said that negotiations between both committees had led to a “major breakthrough” to end the political impasse, resulting in an understanding on some points including consensus that the general elections should be held on the same date.