• Observers fear ambiguities in text of 26th amendment will give rise to even more litigation
• Amendment provides for situation where CJP may also become presiding judge of constitutional bench

Who wields the real authority in the new Supreme Court; is the chief justice of Pakistan or the presiding judge of the new constitutional bench?

This is one of the main questions swirling in the minds of legal practitioners, jurists and observers in Islamabad and beyond, following the early morning passage of the 26th constitutional amendment.

Whatever their political allegiances may be, most agree the Constitutional Package has created a parallel judicial system of sorts, within the very hierarchy of the apex court.

Advocate Syed Ahmad Hassan Shah described the constitutional bench as a ‘can of worms’, predicting that it would experience teething problems, since it had effectively substituted the three-judge committee formed under the Supreme Court (Practice and Procedure) Act 2023.

“The constitutional package is a bundle of confusion and no institution can function with so many contradictions,” commented another senior counsel, who wished to remain unnamed.

The manner of its operation is completely confusing, and confusion often results in more litigation, rather than keeping it in check, he feared.

For example, who will decide a tax matter; the Supreme Court or its constitutional bench? Things become especially murky when the case calls into question the very constitutionality of a particular tax law.

Now, if such a matter lands before the constitutional bench, it may chose to decide the entire case — both the vires of the law as well as the actual dispute between parties — since judges of the constitutional bench will also be sitting as judges of the apex court. This is bound to give rise to a jurisdictional debate within the judiciary.

A couple of off-the-cuff observations by SC judges during Monday’s proceedings indicated that this was no idle prediction.

During the hearing of a matter concerning the Competition Commission of Pakistan (CCP), senior puisine judge Justice Syed Mansoor Ali Shah wondered whether it would be heard by a constitutional bench now, in the same breath adding that these ‘second thoughts’ may soon become a recurring question in the Supreme Court.

During the same hearing, Justice Ayesha Malik also remarked in a lighter vein, “Good luck to your constitutional benches.”

That case was adjourned for three weeks, with Justice Shah noting that the situation may become clearer by then.

Similarly, in another hearing related to the setting up of a climate change authority, Justice Shah inquired whether the authority’s chairman had been notified. When he was told by Additional Attorney General Javed Iqbal that this had not been done so far, as the attorney general for Pakistan was otherwise “busy” with the Constitutio­nal Package, Justice Shah observed that “now all the busy-ness must be over”.

CJP may also be presiding judge

“I see this enterprise destined to fail and eventually merging with the Sup­re­­me Court within a span of six or seven months,” the senior counsel commented.

He was of the view that the first case taken up by the constitutional bench may be the review petition against the July 13 reserved seats judgment, in which a majority of judges, led by Justice Syed Mansoor Ali Shah, had declared the seats to be rightfully PTI’s.

In normal course, it is the CJP who enjoys the final authority in administrative, disciplinary and financial matters of the Supreme Court.

Under Section 14(2) of the package, the most senior amongst the judges nominated by the JCP will serve as the presiding judge of the constitutional bench.

But an explanation — appended to the table outlining the fresh constitution of the JCP in the 26th amendment — hints that the CJP himself could also become the presiding judge.

This may serve to allay concerns about the formation of parallel courts within the SC, but a lack of clarity prevents most people from commenting on it.

“When there is a conflict, the one with more strength and power prevails over the weak,” he said, recalling that since no significant amendment has been done to change the complexion of the Supreme Judicial Council (SJC), which functions under Article 209 of the Constitution, the constitutional body may be used to settle “misconduct” of any judge, who may also be a member of the constitutional bench.

Besides, the CJP still has powers regarding the perks and privilege of the judges, initiation of disciplinary action against judges, sanctioning ex-Pakistan leave, approval of hospital bills or other provisions like allotment of office chambers, substitution of staff or drivers etc and can even transfer judges, to different registries in different cities.

The constitutional bench has been likened to the Shariat Appellate bench of the Supreme Court, which hears appeals against decisions by the Federal Shariat Court. But the schedule of the bench is always decided by CJP.

It also not clear whether the constitutional bench will have a separate registrar, or will it also be officiated through the same registrar’s office as the Supreme Court.

In Advocate Shah’s view, members of the constitutional bench will not necessarily be appointed in accordance with the seniority list, since the bench is to consist of judges representing all provinces.

The question will then arise, whether the judges sitting in the constitutional bench will have more seniority, or the judges of the Supreme Court.

One bench or more?

Some lawyers suggest that following the insertion of Article 191A into the Constitution, the constitutional bench will comprise judges of the Supreme Court, but there will be no security of tenure for members of these benches since their composition could be changed at any time.

The JCP, apparently, now has the power to constitute more than one constitutional bench, but observers say that only one bench may be formed for the time being.

Another interesting contingency that has been provided for in the amendment is that of refusal or rebellion; a substitution in clause (3) of Article 175A, which details the nomination of the CJP from amongst the three most senior judges of the Supreme Court by the Special Parliamentary Committee.

As per the amendment, in case the first nominee declines, one judge from the remaining two shall be nominated. If they too decline, the job may be offered to the third judge. And in case all three refuse, the next in the seniority line after the top three can also be brought into contention.

Published in Dawn, October 22th, 2024