• Justice Shah notes judges can’t be removed from bench sans their consent
• Cites Panama Papers verdict as precedent, says removal of judges won’t affect outcome
• Deplores ‘one-man show’ at apex court, seeks limits to CJP’s ‘unbridled powers’

ISLAMABAD: Two judges of the apex court on Monday cast doubt on the judgement handed down in the March 1 suo motu regarding elections in Khyber Pakhtunkhwa and Punjab, saying that the proceedings stood dismissed by a majority of 4-3, and contended that the chief justice of Pakistan (CJP) does not have the power to restructure benches without the consent of the respective judges.

The 28-page ‘order of the court’ came in stark contrast to the order issued earlier, wherein the top court ruled in a 3-2 verdict that elections in Khyber Pakhtunkhwa and Punjab should be held within 90 days.

The ruling sparked a debate on whether the decision is considered a verdict by a majority of three to two or by four to three, with the government insisting on the latter.

The recent order, authored by Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mando­khail, seems to address this controversy by stating that once “the cause list [is] issued and the bench is assembled for hearing cases, the chief justice cannot reconstitute the bench…”

“We are of the considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the Order of the Court with a majority of 4 to 3, binding upon all the concerned.”

‘Disagreement’ not grounds for redoing bench

In order to corroborate this, Justice Shah referred to the administrative powers enjoyed by the CJP in reconstituting a bench. Once the bench is constituted, a cause list is issued and the bench starts hearing the cases, the matter regarding the constitution of the bench goes outside the pale of administrative powers of the CJP and rests on the judicial side, the ruling said, adding that any member of the bench may, however, recuse from the bench. The bench may 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 reconstitution of a bench while hearing a case, in the absence of any recusal would amount to stifling the independent view of the judge.

“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.

According to the order, the decision of the CJP to remove the two judges from the bench through its reconstitution “has no effect on the judicial decision” passed in the case since the reconstitution was simply an administrative act to facilitate the further hearing by the remaining five members of the bench.

It added that the administrative exercise could not nullify or brush aside the judicial decisions given by the two judges in this case, which have to be counted when the matter is finally concluded.

Panama precedent and ‘one-man show’

“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.”

“We are also fortified in our opinion by the precedent of the well-known Panama case. In the said case, the first order of the court was passed by a 3-2 and in the subsequent hearings conducted in pursuance of the majority judgement the two judges, who had made and announced their final decision, did not sit on the bench but they were not considered to have been excluded from the bench and were made a party to the final judgement…and they also sat on the bench that heard the review petitions.”

The order also questioned the discretion of the CJP in regulating the constitution of the benches and highlighted the need of revisiting the power of “one-man show” enjoyed by the office of CJP to ensure public trust and confidence in the judiciary.

This court cannot be dependent on the solitary decision of one man but must be regulated through a rule-based system approved by all judges, said the judgement.

Referring to CJP’s power, the judgement said the power of doing a “one-man show” was not only anachronistic, outdated and obsolete but also antithetical to good governance and incompatible with modern democratic norms.

The one-man show makes the system more susceptible to the abuse of power, it said, adding that in contrast, a collegial system with checks and balances helps prevent the abuse and promotes transparency and accountability.

“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 is this unbridled power enjoyed by CJP that has brought severe criticism and lowered the honour and prestige of the apex court,” the judgement regretted.

Political thicket

By initiating suo motu proceedings regarding polls, the Supreme Court had ushered into a “political thicket,” which commenced last year with the dissolution of the National Assembly and reached 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,” the judgement said.

We must also remain cognisant that there will always be crucial events in the life of a nation, where the political system may disappoint but this cannot lead to the conclusion that the judiciary will provide a better recourse, the judgement suggested.

Published in Dawn, March 28th, 2023