Justices Mansoor Ali Shah and Jamal Khan Mandokhail on Monday released a 28-page dissenting note to the Supreme Court’s suo motu ruling on elections in Khyber-Pakhtunkhwa and Punjab, stating that the chief justice of Pakistan (CJP) does not have the power to restructure benches without the consent of judges.
Earlier this month, the apex court had issued a 3-2 verdict requiring elections to be held in Khyber-Pakhtunkhwa and Punjab within 90 days of their assemblies’ dissolution, but had allowed for the “barest minimum” deviation from this schedule in light of a delay in announcing a date for polls. Immediately after the ruling was issued, the law minister and attorney general for Pakistan had told media that it was actually a 4-3 ruling, as two judges’ dissenting notes were included in orders despite the CJP later removing them from the bench.
In the order authored by Justices Shah and Mandokhail, they appeared to support the government’s view, stating that after “the cause list issued and the bench is assembled for hearing cases, the chief justice cannot reconstitute the bench.” Concurring with the notes of Justices Yahya Afridi and Athar Minallah, the two judges said the suo motu proceedings should have been dismissed with a majority of 4-3.
Supporting this view, Justice Shah referred to the administrative powers of the CJP in reconstituting a bench, noting that after a bench starts hearing a case, its constitution is no longer within the ambit of the CJP’s administrative powers and relies on the personal recusal of any member of the bench. The bench might also be reconstituted if it is against the rules and requires a three-member bench instead of two, the ruling added. “In the absence of a recusal … any amount of disagreement amongst the members of the bench … cannot form a valid ground for reconstitution of the bench,” it said, adding that reconstituting a bench while a hearing was underway amounted to stifling independent views of judges. “After having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a judge in the later proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the bench,” it argued.
Noting that the CJP had removed the two judges from the bench through its reconstitution, the order stated that this was merely an administrative act and could not nullify the decisions given by the two judges, which had to be counted when the matter was concluded. “Failure to count the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) would amount to excluding them from the bench without their consent, which is not permissible under the law and not within the powers of the chief justice,” it stressed.
Referring to the Panama ruling, the order noted that in its first order, the ruling had passed by 3-2, and the two dissenting judges had not sat on the bench subsequently but were not considered to have been excluded from the bench and also sat on the bench that heard the review petitions.
In this regard, the order criticized the CJP’s discretion in constituting benches, and called for a revisiting of the power of “one-man show” of the office of CJP to ensure public trust and confidence in the judiciary. The court cannot be dependent on the solitary decision of one man, it stressed, adding that it must be regulated through a rule-based system approved by all judges. This “one-man show” power, the order continues, was not only anachronistic, outdated and obsolete but also antithetical to good governance and incompatible with modern democratic norms. It also made the system more susceptible to abuse of power, it said, which could be alleviated through a collegial system with checks and balances.
“Ironically, the Supreme Court has time and again held how public functionaries ought to structure their discretion but has miserably failed to set the same standard for itself leaving CJP with unfettered powers in the matter of regulating the jurisdiction under Article 184(3) constituting benches and assigning cases,” it said, adding: “It is this unbridled power enjoyed by CJP that has brought severe criticism and lowered the honor and prestige of the apex court.”
The order also called out the Supreme Court’s repeated interference in political matters, noting it had commenced with the dissolution of the National Assembly last year and continued into the dissolution of the provincial assemblies this year. “We must not forget that democracy is never bereft of the divide. The very essence of the political system is to rectify such disagreements but to take this key characteristic outside the realm of our political system and transfer it to the judiciary, threatens the very core of democratic choice—raison d’etre of democracy,” it said, noting that there would be moments when the political system might disappoint but this cannot lead to the conclusion that the judiciary would provide a better recourse.