Judiciary’s willpower tested in Imran’s bail

ISLAMABAD:

Since the enactment of the 26th Constitutional Amendment, the Supreme Court on Thursday granted the first relief to Pakistan Tehreek-e-Insaf (PTI) founder Imran Khan by accepting his bail petitions in eight cases linked to the May 9, 2023 violent incidents.

According to legal minds, Chief Justice of Pakistan (CJP) Yahya Afridi passed a very cautious order, which could be considered as an attempt to provide a win-win situation for both sides — the prosecution and the petitioner.

Many lawyers had expected the apex court to remand the matter back to the Lahore High Court (LHC) — which had rejected the bail application in June — for re-hearing. However, the SC bench led by Chief Justice Afridi granted bail.

The court refrained from commenting on the LHC judgment that had declared Imran Khan the perpetrator of the May 9 conspiracy. Lawyers noted that while the LHC had denied bail on conspiracy charges, the apex court extended relief to Khan.

Former additional attorney general Tariq Mahmood Khokhar said that the LHC, while refusing bail to Imran Khan, recorded “definite findings” on contested facts, thereby straying beyond its jurisdiction, prejudicing the trial, and undermining the presumption of innocence.

“Such an approach is impermissible in bail jurisprudence. Superior courts across all rule-of-law jurisdictions have consistently disapproved of this course, and our own jurisprudence, though chequered, has hitherto been no exception to the universally accepted principle,” he said.

Khokhar stated that the LHC erred fundamentally — whether out of ignorance, incompetence, or mala fides. “Many observers believe, regrettably, a combination of all three,” he opined.

Still, he stated, more troubling is the response of the Supreme Court. In paragraph 7 of its order, it noted the “definite findings” but failed to draw the necessary conclusions. “This omission, at once institutional and personal, is astonishingly inexplicable.”

Khokhar believed that the Supreme Court ought to have reaffirmed the impermissibility of such findings, disapproved the high court’s observations, and clarified that they should stand effaced, with the trial court proceedings uninfluenced.

“In cases such as this, precedents exist for passing strictures against the errant judges. Even amidst the ravages of our judicial, constitutional and democratic ruins, the chief justice had an opportunity to avoid the worst and enhance the moral and public legitimacy of a failing institution; the opportunity was missed.”

The adjournments of the two preceding dates of hearings, gave rise to a public perception that the court and the prosecution were in sync, operating in visible alignment, he continued. He added that the absence of judicial disapproval and displeasure at the high court’s “definite findings” reinforced a generally-held belief that the chief justice lacked “authority”.

The eventual grant of bail was a relief and therefore most welcome to the nation here and its diaspora abroad, but unfortunately it was considered a consequence not of judicial assertion, but of a shift in State policy.

Chaudhry Fawad Hussain, who himself is an accused in the May 9 cases said that the Supreme Court had clearly set aside the LHC’s overreach in its decision of rejecting Imran’s bail, but it stopped short of reprimanding the LHC judges.

Notably, this is not the first time the same LHC bench has had its decision overturned by the Supreme Court. It appeared that certain LHC judges were positioning themselves as an appellate court, asserting their views above Supreme Court judgments.

Chaudhry stated that if the Supreme Court did not curb this tendency, it would “severely undermine the hierarchical order of the courts,” he added.

While commenting on the written order, Sarwar Muzaffar Shah advocate said that the ruling reminded him of a tribute to American judge Frank Caprio, whom he had been reading about earlier in the day. “He was loved and respected because he believed that law should serve the people; and he did not consider it blind,” Shah said.

While the substance of the order was correct, Shah said, it remained weak. “It follows the motto that law is blind. This order should have been a strong one, considering what is happening in our country – the erosion of judicial independence through executive interference and the weakening of public trust in our justice system,” he said.

“An ideal judicial order is the one in which the court demonstrates both judicial acumen and judicial courage. However, this order does not demonstrate either. It shows that the court is characteristically playing too safe. Playing too safe is proving dangerous for the justice system of our country,” he added.

Since the enactment of the 26th Constitutional Amendment, there is perception that the superior courts are unable to protect the rights of those who are aggrieved with executive’s actions.

“CJ Afridi and the three-members of constitutional benches committee are being considered as the biggest beneficiary of 26th Constitutional Amendment. They are facing battle of perception. CJ Afridi needs to be aware that institution’s reputation will be restored through judgments rather than reforms agenda with the collaboration of the executive.”