Plunged into a constitutional crisis by the actions of Prime Minister Imran Khan to stop the opposition’s no-confidence motion going to a vote, Pakistan’s democratic future and the supremacy of the Constitution are now at the mercy of the Supreme Court. While it is important that proceedings in this regard are expedited so that a return to normalcy is made sooner rather than later, it was equally necessary that a full 14-judge bench would be formed to hear a case of such importance and sensitivity. That CJP Umar Ata Bandial has limited this bench to five judges of his choosing as is his prerogative raises questions about the methodology and criteria according to which a judge is assigned a case. The non-inclusion of senior-most judges in cases requiring the SC’s interpretation of particular articles of the Constitution, verdicts on which are likely to have lasting implications on the running of the country and its democratic processes, is unfortunate.
Similar concerns were raised by Justice Maqbool Baqar at a full-court reference on the eve of retirement of Justice Qazi Muhammed Amin Ahmed and earlier, by Justice Qazi Faez Isa through a letter to CJP Bandial. Both honorable justices made valid observations that the practice of the CJP unilaterally selecting judges in the absence of any meaningful framework creates room for viewing certain SC proceedings and judgments compromised and biased. Being the final appellant court in the country, such a perception about the Apex court is one it ill-affords, especially considering the increased frequency with which rival political parties have started petitioning it in the past few years.
A clear division in the higher judiciary can be seen due to this matter, which must be effectively removed promptly. The easiest way to proceed would be determine a basic method under which formation of benches and assignment of cases to judges, perhaps on the basis of seniority. Short of this, there will always remain an unnecessary question mark over the impartiality of judges and general discontent within the higher judiciary.
