The best performance category on the bar and the bench was quite a close call, but oh boy, did we have some mic drop moments.
What started with ‘the power to regulate is the power to destroy’ by eight voices concluded with a resounding regulation and structure of power by 10 to five. The battle around the Supreme Court Practice and Procedure Act has finally been laid to rest — Goliath has been tamed!
Many seem to be questioning who emerged victorious in this battle — which political party? Certainly not the Chief Justice of Pakistan? Then who?
Twitter lawyers, actual lawyers and the general public seem to have weighed in their divergent views, but this time the perspectives have a solid source (not masala tickers) because it all unfolded before our own eyes.
So how did Fantastic 15, Season One fare? The reviews are in, and it’s time to hand out some awards. The best performance category on the bar and the bench was quite a close call, but oh boy, did we have some mic drop moments. We can all agree on one thing though — the pilot episode that aired on September 18 was perhaps the most rib-tickling of them all.
During the three weeks that the saga went on, there were some obvious stars who stole the show at the bar and the bench with their stellar performances. The tone for the entire season was set from the very first hearing — we will not proceed on “mafroozay” [surmises and conjectures]. A slippery slope many were not able to navigate through, because if one is to argue for or against the constitutionality of an Act, it has to be tested on all eventualities, comically enough with the help of mafroozay.
Issues that appeared to be most noticeable during season one were the term ‘master of the roster’ which was thrown around ad nauseum, trepidations of a discernible attack on the independence of the judiciary, the will of the people through the legislature demanding respect, the glorious history of the Supreme Court in matters arising out of assumption of jurisdiction under 184(3) and the advertently sluggish apex court that failed to amend its rules, which had ultimately brought them to this day.
For the uninitiated, Article 184(3) outlines the original jurisdiction of the Supreme Court and empowers it to take suo motu notice of any action or development which, in its opinion, is a matter of public importance and involves the fundamental rights of citizens as guaranteed by the Constitution.
The crux of the matter
The petitioners had to carve out a case to show the unconstitutionality of the Act and the respondents had to demonstrate its constitutionality. Between the two, these were the main issues that ran to the heart of the matter:
- Whether Parliament was competent to enact this law and where it drew
its source of power from? - How was the Act under the challenge not undermining the independence
of the judiciary, with interference seeping down to the very nitty
gritty of the Supreme Court’s workings? - Why must Parliament dictate how many judges can sit in the committee?
- How can Parliament carve out a substantive right of appeal through
ordinary legislation without a constitutional amendment? - Why must we open a door for Parliament to dictate us? Tomorrow they
could be determining the number of judges that can hear family cases;
where does it stop?
The petitioners attacked the Act as a shoddy, hurried piece of legislation that required to be read down and read into so that sense could be made of the absurdities and the oxymorons that reigned supreme in it. If it’s such a bad law, why let it stay?
We’ll amend the rules (from 20 years!)
If we flip the script, other voices from the bench echoed the will of the people through their elected representatives to prevail over the unelected Supreme Court. There was much talk about ridding the concentration of power at the top and structuring of discretion, which with time, evolved into a destructive and undemocratic doctrine of command.
The respondents, arguing in favour of the legislation, mainly advanced their case on the supremacy of the Constitution and competence of Parliament to enact the law under challenge. They argued that what appeared as an attack on the internal independence was in fact a step to strengthen the house of cards.
And the award goes to…
Before this lawyer gets bogged down in a complex legal debate about legislative competence, we must halt, we must not digress; we have awards to hand out! Let’s start with the bench.
Because this performance was so persistent and assertive, I was forced to introduce a new category in the nominees, the ‘bastion of justice award’.
Drum roll!
And the award goes to Justice Athar Minallah!
Many who have appeared before him in court will resonate with his admirable stance on access to justice and the independence of the judiciary. From the pilot episode, Justice Minallah vociferously maintained his stance on strengthening the internal independence of the judiciary and advancing access to justice. Till the last day, he stuck to his guns and we value his persistence. The beauty of a full court is in its differing perspectives and these awards are a reflection of those valuable opinions.
Onto our next category, the award for the ‘brainiac of the bench’.
I think this would have to be a no-brainer (pun very much intended) — the award goes to the formidable, the undeniable, the phenomenal, Justice Munib Akhtar.
His penchant to engage in debates that are intellectually stimulating and challenging, not only for the lawyers, but also those who viewed the proceedings live is a delight. From his questions would flow meaningful arguments and questions. He doesn’t settle for mediocrity and he is always well-versed and well-read on the topics he engages the lawyers in, and for that, his valuable contribution merits an award.
Justice Akhtar will always make proper and not popular observations. One never finds him playing to the public gallery; he defended AK Brohi’s celebrated book called ‘Fundamental Laws of Pakistan’ for not having been written during the time of martial law and he defended the former chief justices of this court (the ones with integrity) who don’t have a mouthpiece to defend themselves after retirement and therefore should not be commented upon in court.
Many times, during the proceedings he violated the no ‘mafroozay’ code but he did so for good reason. Yes, he authored the judgment that uses the term ‘master of the roster’ for the chief justice, but not once did we see him get hostile during the proceedings when his judgment was impliedly being ripped apart especially when the term ‘master of the roster’ was attributed to colonialism. His demeanour remained calm and civil even though he was many a time poked for a reaction. If anything, his dissenting note is most awaited!
The next award category is for ‘best performance in a supporting role’ — this would be a tie between Justice Ayesha Malik and Justice Muhammad Ali Mazhar.
Both asked tough questions that could not be brushed under the carpet. Justice Malik stuck to her question regarding the right of appeal being denied where the matter was heard by a full court. To the surprise of many, no one was able to answer her question. She did not let others talk over her, or trample over her questions even though she found herself having to explain her verdict in the LPG association case that is currently under challenge in the apex court.
Justice Muhammad Ali Mazhar remained concerned with the retrospective application of section 5 of the Act, which grants the right of appeal to judgments rendered under Article 184(3) jurisdiction of the Supreme Court. It appears from the short order that retrospective application of appeal does not find favour with the majority as those who support its retrospectivity are in the minority and dissenting, including the Chief Justice.
Last but not least, the ‘award for overall best performance’ was a difficult one.
Strong contenders were Justice Ijazul Ahsan, Justice Yayha Afridi and Justice Mansoor Ai Shah.
Justice Ahsan and Justice Shah always made sure to summarise submissions of the counsels so that they could reassure that they had understood correctly. This helped further build upon the argument. There were some mic drop moments from Justice Ijazul Ahsan, but one that particularly stood out was when he pointed out that 32 people sitting in Parliament do not represent the will of the people of Pakistan — a direct rebound to Justice Shah’s main contention of the Parliament representing the will of the legislature.
But the winner of the best performance award belongs to Justice Afridi, who stealthily observed everything and did not disclose his mind even once. He made very intelligent observations and never interrupted the lawyers while they were articulating their formulations. He always waited for the lawyer to complete their formulation and only then would he ask his question, which would not be on a different tangent as to what was being argued.
If we were to give awards for reliability and holding true to their word, the obvious winner would have to be the former master of the roster, CJP Qazi Faez Isa. He stuck to his promise to decide the fate of the Practice and Procedure Act and he delivered on it. He constituted a full court and provided for a live telecast of perhaps one of the most historical and ground-breaking cases to have been argued before the apex court.
Yes, he did not shower the lawyers before him with roses but you can always count on him to keep it real and we’ll cap our expectation at that; though his request to discuss Islamic injunctions when case law from the United States and India was cited were perhaps unusual.
What about the bar?
Should we comment on the performance from the lawyers?
For everyone’s sake, the clear victors were the arguments made by the lawyers of all those supporting the Act as well as the federation. Barrister Salahuddin Ahmed, with his larger-than-life presence and confidence, advanced his position and did not allow anyone to undermine his arguments — a master class in advocacy.
Attorney General Mansoor Awan received the toughest time from the bench as he was quizzed at length on legislative competence, because he advanced the most intelligent interpretation of the legislative list. However, he was chided for bringing up the sullied reputation of the apex court in exercise of its powers under Article 184(3). He did not, however, back down as it was necessary to show what the mirror beholds. Reflection of the past is the desideratum for change.
The livestream
It is also important to highlight why the live telecast was important — it exposed the intellectual prowess, demeanour and temperament of many, from both the bar and the bench.
It has allowed everyone to revisit the debate surrounding Section 184(3). A right of appeal under Section 5 of the Act gives a fair shot to an aggrieved appellant to have his/her case be dissected by a fresh pair of eyes. This supports access to justice and the right to a fair trial. Anyone arguing against that by clothing it under a constitutional amendment is being a reductionist.
It would be ignorant to deny the deep polarisation within the Supreme Court, however, the dilution of power may now pave the way for new narratives (if at all the judges are willing). Too often, those on the bench forget that it is only through their pen that they may last in memory and in legacy; it is never through ephemeral observations that feed instant gratification by the media.
The nation is recovering from season one so perhaps season two will take some time in production. It’s been a pleasure and an amusing ride, till next time. If I were to give a background score or an OST to season one, it would be Winds of Change by The Scorpions. I’ll leave you to mull over that.
Header illustration: Shutterstock
