A snapshot into constitutional and human rights jurisprudence of Justice Umar Ata Bandial, who will be the Chief Justice of Pakistan from 2 Feb 2022 to 17 September 2023
1. In 2015, he was part of the 21st amendment judgment, which held trial of civilians for terrorism by military courts did not violate right to fair trial or judicial independence
Judgment also said it is for the govt - not courts - to ensure its conduct doesn’t violate int. law
2. In the same case, he was one of the judges who held Parliament’s powers to amend the Constitution was subject to “implied limitations”, and that SC had power to strike down constitutional amendments if they substantively altered the Constitution’s “salient features”
3. He authored the SC judgment the lifetime disqualification case, in which the SC held disqualification under Article 62 (1) (f) is for life
The judgment also said Articles 62 and 63 reflect Islamic values and therefore are integral to scheme of the Constitution
4. He was part of the Supreme Court bench that held S. 203 of Election Act should be read subject to Art 62, 63 of Constitution i.e. a person disqualified under these provisions cannot hold the position of a “party head”
The law at the time contained no such prohibition
5. He authored the majority judgment in Justice Isa’s case
The judgment quashed the reference against J. Isa for being mala fide in law
Yet, the majority judgment directed authorities to conduct inquiries against J. Isa’s family outside the mandate of law
6. He was one of the four dissenting judges who rejected review petitions against the directions contained in paras 4 to 11 of the SC judgment in J. Isa’s case
(As mentioned earlier, J. Bandial was the author the majority judgment under review)
7. He was one of the six judges who decided against Justice Isa’s application to make court proceedings related to the review petitions in his case available to the public
8. He was part of the two-member bench (along with Justice Shah) who granted Khursheed Shah bail
Court held since NAB was unable to show sufficient incriminating material to justify Shah’s detention, depriving him of his liberty would be “unconscionable and below human dignity”
9. J. Bandial headed the 5-member bench that declared the Chief Justice is the sole authority through whom suo motu jurisdiction under 184(3) can be assumed
No bench has authority to take any step that could constitute exercise of suo motu until CJ has invoked such jurisdiction
10. He was part of the bench that dismissed a petition to declare Imran Khan not sadiq and ameen
Court held “dishonesty is an essential element of disqualification” under 62(1)(f), and in IK’s case, there is “no dishonesty in the omission” related to his declaration of assets
11. He was part of the bench that passed an order to dispose of the application in the case about PM’s distribution of development funds
Order said to uphold principle of “un-biasness and impartiality”, J. Isa (also a member of the bench) should not hear matters related to PM
12. He authored the order that suspended (for most part) the Balochistan High Court judgment on DHA Quetta
Among other things, BHC judgment had held S. 6(1)(b) of DHA Quetta Act, which allowed DHA Quetta to acquire land under the Land Acquisition Act, violated the Constitution
13. CJ Bandial’s jurisprudence continued..
CJ Bandial led a larger bench that in April 2022 unanimously held former Dep Speaker Suri’s ruling dismissing VONC resolution and the subsequent dissolution of National Assembly was unconstitutional and a violation of fundamental rights
14. In May 2022, CJ Bandial took suo motu notice of “perceived interference" by "persons in authority" in investigation/prosecution of Govt officials
In its order, a SC larger bench barred transfers/removals of persons involved in investigation/prosecution of high profile cases
15. CJ Bandial was one of the 3 judges who in response to a presidential reference held Art 63A should be given a “robust and purposive” meaning and votes cast contrary to party direction must be disregarded
Two dissenting judges considered this re-writing of the Constitution
16. He led a larger bench that considered contempt proceedings against IK for disobeying a court order regarding PTI’s long march
CJ Bandial exercised restraint and ordered a further inquiry
J. Afridi in his dissent said there is enough material to move against IK for contempt
17. He was part of a 3-member bench that held Mazari’s ruling discarding votes by Q MPAs unconstitutional
He distanced himself from a different reading of Art 63 earlier by arguing, among others things, judges are free to adopt “correct” view after conscious application of mind
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