The ‘tarnished legacy’ of Pakistan’s retiring top judge Umar Ata Bandial

Last Updated on September 15, 2023 1:18 pm

By Abid Hussain

Islamabad, Pakistan – As Umar Ata Bandial prepares to hang up his robe on Saturday, ending his tenure as Pakistan’s 28th chief justice, his detractors and supporters say he will be remembered as one of the most polarising top judges in the country’s history, who leaves behind a “tarnished legacy”.

The Lahore-born jurist’s tenure as the chief justice lasted for about 20 months after he took over in February 2022 as the South Asian country faced a serious political crisis.

As he came to the top court, the then-opposition coalition, the Pakistan Democratic Movement (PDM), was striving to topple the government, headed by former Prime Minister Imran Khan and his Pakistan Tahreek-e-Insaf (PTI) party, through a parliamentary vote of no confidence.

Within two months of taking charge, Bandial faced his first major legal challenge when he declared that the then-deputy speaker of parliament’s decision to dissolve the house was “unconstitutional”.

With the top court’s five-member bench headed by Bandial ordering the restoration of the National Assembly, the stage was set for Khan’s removal as the PDM alliance moved a no-confidence motion against the government.

The removal of Khan in April last year set in motion a chain of events with reverberations that can still be felt in Pakistani politics today. For the next 18 months, Bandial found himself arbitrating on a deluge of petitions, often political, making him a deeply polarising figure in the country.

Bandial, who became a Supreme Court judge in 2014 before his elevation as the top judge last year, has been often accused of showing leniency towards Khan and his party.

On numerous occasions since his elevation, former Prime Minister Shehbaz Sharif’s Pakistan Muslim League-Nawaz party, the PTI’s biggest rival, demanded Bandial’s resignation, with some of its leaders going as far as to suggest he join Khan’s party.

The tussle was so strong that Sharif’s government refused to implement some of the top court’s decisions and even attempted to pass a law in parliament to curb the powers of the chief justice.

Abuzar Salman Khan Niazi, a Lahore-based constitutional expert who represented Khan in multiple legal cases, dismissed allegations that Bandial was preferential towards Khan or his party.

“PTI has been facing a massive state crackdown and Bandial only tried to uphold law and constitution. If he was biased towards the party and its chief, Imran Khan would not have been in jail right now,” he said.

Khan has been languishing in prison in Attock city in Pakistan’s Punjab province since August 5, when he was handed a three-year sentence on corruption charges.

While the conviction was suspended by a high court last month, the 70-year-old opposition leader remains in custody in the so-called “cipher” case, an investigation over a leaked diplomatic cable that Khan claims proves his allegations that the United States conspired with Pakistani authorities to remove him.

Divisions in top court
Yasser Kureshi, a lecturer in South Asian Studies at Oxford University and author of Seeking Supremacy: The Pursuit of Judicial Power in Pakistan, said Bandial took over the reins when the Supreme Court was already deeply fragmented, but his actions only helped to exacerbate those divisions.

“He did not seem inclined towards mitigating these divisions, using his powers to form benches that included judges that appeared to align with him, and marginalising judges with whom he was known to have differences, and refusing to bring together full benches for major political cases,” Kureshi told Al Jazeera.

Niazi said he held all the 15 top court judges responsible for the fracture within the judiciary.

“[These] differences among the judges only harmed the judiciary, and for that, I hold all the judges responsible. They were unable to sit together and ignore their differences, and this led to the Supreme Court losing its independent space and as a watchdog of the executive,” he told Al Jazeera.

Niazi said Bandial will be remembered for his gentle manner, as a judge who was civilised and courteous, yet his tenure as the top judge left much to be desired.

“Under his time, there was a massive state crackdown on political workers and human rights abuses, as well as the state’s failure to implement on court’s orders. Yet he continued to show restraint. Those were extraordinary times, and he should have taken extraordinary measures as required,” he said.

‘Tarnished legacy’

Moiz Mirza Baig, a legal analyst, said Bandial is leaving behind a court which is “more fractured than ever before”.

“The chief justice’s propensity to appease all sides may not have appeased anyone. While the gains from such appeasement may not be clear, what we have lost is the people’s confidence in the Supreme Court,” the Karachi-based lawyer said.

But Asad Rahim Khan, a lawyer and commentator, praised Bandial’s “determination despite being dealt an impossible hand”.

“Over the course of his tenure, he was obstructed or opposed by both the PDM and the PTI, the deep state, the bureaucracy, and a divided bench. In keeping with so many of his predecessors, he could have easily capitulated. Instead, he did his duty to Pakistan and the constitution,” he told Al Jazeera.

In May, Bandial declared Khan’s two-day detention for allegedly inciting violence was illegal. He also issued a key decision earlier this year to hold provincial elections in Punjab and Khyber Pakhtunkhwa.

The two PTI-controlled assemblies were dissolved in January this year as part of Khan’s bid to force the federal government into announcing early elections. Pakistan traditionally holds provincial and national elections together.

However, despite clear guidelines to hold the polls within 90 days of the dissolution, the Bandial-led bench’s orders were never fulfilled by the PDM government.

Legal analyst Rida Hosain said the divisions within the judiciary were exploited by the political executive.

“The judiciary depends on the executive for the enforcement of its orders. But the former coalition government diminished the authority of the judiciary,” the Lahore-based analyst said.

Lawyer Rahim Khan said Bandial ordering the count of each legislator’s vote in case they went against party lines in a legislative assembly was perhaps his most contentious judgment.

The verdict last year, in a case about voting by dissenting legislators, resulted in the collapse of the PMLN-led government in Punjab, the country’s most influential province, and allowed the PTI to take over.

Constitutional expert Niazi agreed. “My reading is the Supreme Court rewrote the constitution in that decision which is not their job. They are meant to interpret constitution, not fill in legislative gaps,” he said.

For political analyst Cyril Almeida, however, Bandial would be remembered for his efforts to reshape the country’s politics and to interpret the law without any regard for its immediate political consequences.

“In truth, at a time when all civilian parties themselves have contributed to the unravelling of democracy in Pakistan and the military has asserted itself more forcefully in the political domain, Bandial’s tarnished legacy is symbolic of the current political era,” the Islamabad-based analyst told Al Jazeera.

“No party has its hands clean and everyone has some legitimate reason to be upset.”

SOURCE: AL JAZEERA