The dissent within

Almost two years ago, Justice Mian Saqib Nisar donned the robes as the Chief Justice of Pakistan amidst the Panama leaks saga. Despite predictions of a soft stance, Justice Nisar has proved to be one of the most hardliner judges ever. Nobody escaped his wrath once he became comfortable in his new seat. Judicial activism and the expansion of suo motu powers was taken to unprecedented levels.

CJ Nisar embarked upon a new found quest under the garb of the human rights cell. Visits to public institutions, mostly hospitals, where while appreciated by some but criticised by most. A vast majority of our citizens were provided relief as the CJ worked round the clock. The human rights cell working the entire day over the weekends effectively reaching out to the common man. However, the intellectual sections of the legal fraternity mostly criticised the CJ for moving beyond the constitutional mandate provided to him. Some even lambasted him for his visits to private and public hospitals.

In between his hungry quest to serve the public, the CJP found himself seated in the middle of Justice Qazi Faeez Isa and Justice Syed Mansoor Ali Shah at the Peshawar registry. Halfway through the hearing of a case, the CJ sensed a difference of opinion emanating from Justice Isa. It wasn’t just a difference of opinion, but rather a question upon the human rights cell’s powers and legal value.

The CJP, who was busy using the HR cell as a tool every other day, made a move in the spur of the moment. He immediately announced the dissolution of the presiding bench and reflected his intentions to reconstitute the bench shortly, which eventually happened. The CJP returned to preside over the case but only with Justice Shah at his side.

The other Hon’ble member of the bench was left wondering as to what actually transpired. But Justice Isa didn’t remain quiet. He penned his opinion down and noted that the reconstitution of the bench during the hearing of a case is unprecedented and undermines the independence of judiciary.

In order to rectify the reconstitution, the CJ should respond to both Justice Isa and Justice Shah’s observation

CJ Nisar continued on his activist agenda to extend the parameters of suo motu powers beyond previously acceptable standards. The HR cell grew stronger than ever. The reconstitution of the bench in Peshawar had been forgotten by most. However, as they say, such is the beauty of an independent judiciary and upright institution that when a judgement call has to be made, the Hon’ble Judge can formulate an opinion without considering external factors.

In spite of the fact that Justice Shah is one of the junior most judges present on the Supreme Court bench, he didn’t shy away from rendering his opinion on the Peshawar incident. A little late in the day though, which delay however, has been explained by the Hon’ble Judge in his order issued on the 12th of January, 2019. Justice Shah went all out against the CJP’s actions on the fateful 9th day of May, 2018. Explaining with reasoning, every observation he’s made, the former Chief Justice of the Lahore High Court bifurcated the administrative powers of a Chief Justice from the judicial powers of all the judges. He concluded that once a bench has been constituted, only recusal or unavailability of a member can be the basis of reconstitution.

No matter how many disagreements may arise between the members, a dissenting opinion cannot be the reason for dissolving a bench of the Supreme Court. Such practices would question the very independence of judiciary that the legal fraternity fought for, over a decade ago. In the words of Justice Shah, any effort to muffle disagreement or to silence dissent or to dampen an alternative viewpoint of a member on the bench, would shake the foundations of a free and impartial justice system, thereby eroding the public confidence on which the entire edifice of judicature stands.

Despite all positive actions undertaken by the CJP during his tenure, this particular move of the Chief was unprecedented and unwarranted. It sets a bad precedent for the generations to come. Any wrong man occupying the head chair would end up making disastrous decisions completely undermining the judicial system.

The taint on CJ Nisar’s legacy in his ending days would be damaging to his reputation. In order to rectify the reconstitution, the CJ should respond to both Justice Isa and Justice Shah’s observation, because both the judge’s views combined would form the majority opinion of the bench and would render the reconstitution of the bench by the CJP null and void.

Without prejudice or bias to the aforesaid, the bright side of the entire episode is the strong dissent present within the institution. The bold and upright judiciary is the beacon of hope and the symbol of democracy in our country. If a judge of the apex court disagrees, even with the Chief Justice, then without fear he is able to disagree and render his own respective opinion.

Such dissent is what strengthens the institutions. Though, the same should not be employed to settle personal scores as well. In my opinion, it is highly commendable of Justice Mansoor Ali Shah to acknowledge his mistake and own it in a written order. At the end, he decided to relieve himself of the moral and constitutional pressure being built up on his shoulders in light of the Peshawar incident.

People come and go. Faces change, never to return again. What remains is the legacy and the institutions. All the kings and the king’s men are long gone, yet their respective legacies remain enshrined in the echelons of history. Similarly, CJP Nisar is soon to retire, followed by all other members in due course. What will remain is the jurisprudential legacy they leave behind.