Islamabad:
Since the promulgation of the 26th Constitutional amendment, the Supreme Court granted on Thursday the first relief to the founder of Pakistan Tehreek-E-Insaf (PTI) Imran Khan by accepting their bail requests in eight cases linked to the violent incidents of May 9, 2023.
According to Legal Minds, the president of the Supreme Court of Pakistan (CJP) Yahya Afridi approved a very cautious order, which could be considered as an attempt to provide a situation of win-win for both parties: the prosecution and the petitioner.
Many lawyers had expected the Apex court to return to the Superior Court of Lahore (LHC), which had rejected the bail application in June, to re -audible. However, Bank SC led by the president of the Supreme Court Aphridi granted bail.
The Court refrained from commenting on the LHC judgment that the author of the May 9 conspiracy had declared to Imran Khan. The lawyers pointed out that, although the LHC had denied the bond of conspiracy charges, the Apex court extended relief to Khan.
The former additional attorney general Tariq Mahmood Khokhar said that the LHC, while refusing the bond to Imran Khan, recorded “defined findings” about the facts disputed, thus diverting beyond its jurisdiction, harming the trial and undermining the presumption of innocence.
“Such a approach is inadmissible in the jurisprudence of the bond. The superior courts in all the jurisdictions of the rule of law have consistently disapproved of this course, and our own jurisprudence, although in paintings, has not been until now it is not an exception to the principle universally accepted,” he said.
Khokhar declared that the LHC was fundamentally wrong, either by ignorance, incompetence or bad trust. “Many observers unfortunately believe a combination of the three,” he said.
Even so, he said, more worrying is the response of the Supreme Court. In paragraph 7 of his order, he noticed the “defined findings” but failed to draw the necessary conclusions. “This omission, at the same time institutional and personal, is surprisingly inexplicable.”
Khokhar believed that the Supreme Court should have reaffirmed the inadmissibility of such findings, disapprove of the observations of the Superior Court and clarified that they should be erased, with the procedures of the Court of First Instance without influence.
“In cases like this, there are precedents to approve the restrictions against wandering judges. Even amounts to our judicial, constitutional and democratic ruins, the president of the Supreme Court had the opportunity to avoid the worst and improve the moral and public legitimacy of a failed institution; the opportunity was lost.”
The postponements of the two previous dates of the hearings gave rise to a public perception that the Court and the Prosecutor’s Office were synchronized, operating with visible alignment, he continued. He added that the absence of disapproval and judicial disgust in the “defined findings” of the Superior Court reinforced the belief that the president of the Supreme Court lacked “authority.”
The eventual bail subsidy was a relief and, therefore, the most welcome to the nation here and its diaspora abroad, but unfortunately it was considered a consequence not of judicial statement, but of a change in state policy.
Chaudhry Fawad Hussain, who is a defendant in the cases of May 9, said the Supreme Court had clearly set aside the overreach of the LHC in his decision to reject Imran’s bond, but stopped repressing LHC judges.
In particular, this is not the first time that Banco LHC himself has revoked his decision by the Supreme Court. It seemed that certain LHC judges were positioning themselves as an appeals court, affirming their views above the trials of the Supreme Court.
Chaudhry declared that if the Supreme Court did not stop this tendency, “the hierarchical order of the courts would severely undermine,” he added.
While commenting on the written order, Sarwar Mazaffar Shah’s defender said the ruling reminded a tribute to US judge Frank Caprio, whom he had been reading earlier in the day. “He was loved and respected because he believed that the law should serve people; and did not consider him blind,” Shah said.
While the substance of the order was correct, said Shah, remained weak. “It follows the motto that the law is blind. This order should have been strong, considering what is happening in our country: the erosion of judicial independence through executive interference and the weakening of public confidence in our justice system,” he said.
“An ideal court order is that in which the Court demonstrates judicial insight and judicial courage. However, this order does not demonstrate either. It shows that the Court is playing characteristically too safe. Playing too safe is demonstrating to be dangerous for the justice system of our country,” he added.
Since the promulgation of the 26th constitutional amendment, there is a perception that the higher courts cannot protect the rights of those who are harmed by the actions of the Executive.
“CJ Afridi and the three members of the Constitutional Banks Committee are being considered as the biggest beneficiary of the 26th Constitutional amendment. They face the battle of perception. CJ Afridi must be aware that the reputation of the institution will be restored through judgments instead of a reform agenda with the collaboration of the Executive.”
