Justice Qazi Faez Isa will take oath as the 29th Chief Justice of Pakistan today. As the ceremony approaches, a positive energy is pervasive, which might lessen the perception of a split Supreme Court. During a series of encounters over the past several days, a number of senior officials said, “You will see unity in the Supreme Court soon.”
Justice Isa’s tenure as the Chief Justice of Pakistan (CJP) is likely to confront a significant challenge in the need to unify the court and restore its credibility. This entails ensuring that the court’s judgments are beyond reproach and criticism.
Issue of Bench composition
One recurring concern is that certain benches in the Supreme Court contain ‘like-minded judges’ to handle constitutionally significant public matters. This practice has invited criticism of the top judiciary, giving rise to doubts about the impartiality of the proceedings. There has been a prevailing sentiment that senior judges have sometimes been excluded when constituting benches to secure desired outcomes in cases.
On his first day as CJP, Justice Isa will grapple with a series of challenges related to the Supreme Court (Practice and Procedure) Act 2023. This legislation necessitates the formation of benches for constitutional matters of public importance by a committee of three senior judges.
Previously, an eight-judge bench led by the outgoing CJP suspended the enforcement of the Supreme Court (Practice & Procedure) Act, 2023, on April 13.
In response, a commission led by Justice Isa questioned the composition of a bench hearing six challenges against the investigative body tasked with examining audio leaks. The commission argued that the bench handling the matter did not adhere to the requirement mandated by the suspended act, which specifies that a three-member committee of judges should determine it.
The commission asserted that they could not hear the petitions challenging the audio commission until the committee determined which bench should handle them, as the designated bench had not scheduled them.
On June 3, Justice Isa made the decision not to participate in a nine-judge bench responsible for cases related to the trial of civilians in military courts. He cited his reluctance to contravene the suspension of the law, stating that he would not sit on benches until the court reached a decision on the legality of the practice and procedure law. Consequently, Justice Isa opted for chamber work instead of presiding over court hearings.
The biggest challenge
Justice Isa’s tenure as the Chief Justice of Pakistan (CJP) may face its most significant test when the controversy surrounding the timing of general elections within 90 days of the dissolution of national and provincial assemblies potentially reaches the Supreme Court. This challenge could have far-reaching implications for the country’s political landscape.
Additionally, he will need to maintain a functional relationship with the executive branch. President Arif Alvi has already sought guidance from the Supreme Court on the feasibility of conducting general elections timely, which underscores the importance of a harmonious relationship between the judiciary and the executive.
Regarding the pending hearing on the trial of civilians by military courts, it may not solely be Justice Isa’s challenge but one that concerns the entire court. Since Justice Isa has previously expressed his opinion on this matter in a dissenting judgment against military courts in August 2015, he may choose to participate in the bench deliberating on this issue.
In his dissenting judgment, Justice Isa noted that the 21st Amendment did not effectively address the issue of trying civilians in military courts. He suggested that implementing the Anti-Terrorism Act, of 1997, could help combat terrorism and ensure the conviction of terrorists.
To understand how Justice Isa will manage his responsibilities at the Supreme Court, it’s worth noting that he has a clear understanding of the dynamics at play. He served as the top judge of the Balochistan High Court from 2009 to 2014, a period marked by sensitive military operations in Balochistan. This experience equips him to handle complex and challenging issues effectively.
Furthermore, Justice Isa will face the daunting task of addressing the substantial backlog of over 56,000 pending cases, which is another significant challenge that demands his attention and strategic planning during his tenure as CJP.
