ISLAMABAD: Two judges of the apex court on Monday cast doubt on the judgement handed down in the March 1. That was a suo motu regarding elections in Khyber Pakhtunkhwa and Punjab. Judges cast doubt saying that the proceedings stood dismissed by a majority of 4-3. It contended that CJP does not have the power to restructure benches without the consent of the respective judges.
The 28-page “order of the court” contradicted the top court’s 3-2 decision to hold elections in Khyber Pakhtunkhwa and Punjab.
The administration argued that the ruling was a verdict by a four-to-three majority.
Judge Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail’s latest order tries to address this controversy by noting that “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 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.”
Dispute doesn’t warrant bench redo
Judge Shah used the CJP’s administrative powers to reconstitute a bench as evidence. The judgement stated that once the bench is created, a cause list is issued. The bench begins considering cases, the topic of the bench’s constitution becomes judicial and outside the CJP’s administrative authority. Any bench member may recuse. The ruling also states that the bench may be reconstituted. In case it violates the rules and needs three members instead of two.
It noted that reconstituting a bench while hearing a case without a recusal would stifle the judge’s independent view.
“After having made a final decision on the matter at an early stage 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.
The order stated that the CJP’s reconstitution “has no effect on the judicial decision”. Since it was only an administrative act to allow the remaining five judges to hear the case.
It stated that the administrative activity could neither annul or brush aside the court decisions provided by the two judges in this case. It to counted when the matter finally finished.
Panama precedent; “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 made and announced their final decision, did not sit on the bench but not considered to excluded from the bench and made a party to the final judgement…and they also sat on the bench that heard the review petitions.”
The order also questioned the CJP’s discretion in regulating bench constitutions and stressed the need to revisit the CJP’s “one-man show” power to restore public trust in the judiciary.
The judgement stated that this court must be governed by a rule-based system approved by all judges, not one man.
The verdict called CJP’s “one-man show” dominance antiquated, outdated, and incompatible with good governance and modern democratic principles.
It said a collegial system with checks and balances prevents power abuse. It promotes transparency and accountability, while a one-man show makes the system more vulnerable.
Strangely, the Supreme Court has repeatedly held how public servants should organize their discretion but has shamefully failed to create the same criteria for itself, leaving CJP with unlimited powers in regulating the jurisdiction under Article 184(3) constituting benches and assigning cases.
The verdict regretted that CJP’s unfettered power has attracted serious criticism and damaged the top court’s honor and respect.
Political maze
By beginning suo motu proceedings addressing polls, the Supreme Court had launched into a “political thicket,” which begun last year with the dissolution of the National Assembly and reached the dissolution of the provincial assemblies this year.
Democracy is never without division. “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 verdict added.
The court noted that there will always be significant events in a nation’s life where the political system disappoints, but this does not mean the judiciary will provide a better recourse.
