ISLAMABAD: The Supreme Court was requested on Tuesday to do away with the practice of splitting its strength into different benches because it was against the command of the constitution.

The request was made through a petition moved by Advocate Mian Shafaqat Jan who said the practice under the Supreme Court Rules 1980 empowering the chief justice to constitute benches was illegal and against the constitution.

“Thus the top court should hold that the Supreme Court is duly constituted only when it sits as a single court consisting of the chief justice and all judges of the court,” the petitioner said.

According to him, the bench of the Supreme Court, with or without the chief justice consisting of two, three, five or any lesser number of judges constituted under the relevant rules, is not the Supreme Court of Pakistan as established and constituted under Article 175 of the Constitution 1973.

“If the working and sitting of the Supreme Court in benches is deemed inevitable for any reason, then the federal government should be directed to initiate an appropriate legislative measure to amend the constitution facilitating working of the apex court in benches of desired number of judges as being practised at present,” he contended.

With the exception of Article 203F of the Constitution, it is only the high courts and the Federal Shariat Court (established under Articles 175 and 203C of the Constitution) for which benches have been provided either by the constitution itself or a power to constitute benches have been given in the constitution, under rule-making powers.

The petitioner also said that except for Article 203F there was no provision in the constitution which permitted or provided for splitting the apex court into different benches, other than the total strength and composition of the Supreme Court as provided for in Article 176 of the Constitution, read with Section 2 of the Supreme Court (Number of Judges) Act, 1997.

Highlighting Article 191, the petitioner argued that the rules to be framed by the apex court should be subject to the constitution and the law which meant anything that was not provided for in the constitution could not be acquired by this court through its rule-making powers.

Recalling the events of 1996, he regretted that the division of the apex court judges into different benches had led to the unfortunate situation/crisis at the time when Justice Sajjad Ali Shah was chief justice and different benches had issued contradictory judgments.

“In order to avoid conflicting decisions by the apex court on the same subject, the framers of our constitution did not provide for splitting of this court into benches. Moreover, the most important fundamental right of citizens was to have access to each and every judge of this court for a verdict on any of his/her grievances — a concept which got infringed by splitting the court into benches,” the petition said.

The splitting of benches, it said, also led to a public perception that the chief justice had constituted benches with the judges of his own choice and of his liking for any particular matter which was something the framers of the constitution might also have had in mind while envisaging the creation of a single court.

In countries like India and Bangladesh, where the apex courts sat and worked in different benches/divisions, such powers allowing the constitution of benches had been provided for in their constitutions, the petition said.

Published in Dawn, December 2nd, 2015

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