Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court have called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.
The two made the remarks in a detailed dissenting note — released on Monday hours after the SC took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.
Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on February 22 took suo motu notice of the polls in Punjab and Khyber Pakhtunkhwa, saying that there appeared to be a “lack of clarity” on the matter.
Justice Bandial also constituted a nine-member bench — comprising himself, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah — to hear the case.
The CJP on February 27, however, split the larger bench into a five-member bench. The SC also issued a written order, which was dictated in the open court on Feb 23 when Justice Jamal Mandokhail objected to the initiation of the proceedings under Article 184(3).
Signed by nine judges, the written order of the bench stated that keeping in view the Feb 23 order, the additional notes attached by four judges, the CJP’s direction to add questions raised by Justice Shah, Justice Afridi, Justice Mandokhail and Justice Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.
In response, the CJP reconstituted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar. Those who dissociated themselves from the hearing included Justice Ahsan, Justice Afridi, Justice Naqvi, and Justice Minallah.
On March 1, the SC, in a 3-2 verdict, directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP.
The majority judgement, given by CJP Bandial, Justice Akhtar, and Justice Mazhar, however, allowed the ECP to propose a poll date that deviates from the 90-day deadline by the “barest minimum”, in case of any practical difficulty.
Justice Mandokhail and Justice Shah — who were among the four judges who had written additional notes in the Feb 23 order — dissented with the ruling. In a joint dissent note, the two top court judges said that the suo motu proceedings initiated by the CJP were “wholly unjustified”, besides being initiated with “undue haste”.
In the 28-page detailed dissenting note, which was released on Monday, the two judges said that the top court’s “original jurisdiction” under Article 184(3) of the Constitution was not only “‘discretionary’ but also ‘special’ and ‘extraordinary’, which is to be exercised ‘with circumspection’ only in ‘exceptional cases’ of public importance relating to the enforcement of fundamental rights that are considered ‘fit’ for being dealt with under this jurisdiction by the court”.
Article 184(3) of the Constitution sets out the Supreme Court’s original jurisdiction, and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
The judges wrote that the SC’s jurisdiction should not be “frequently and incautiously exercised, lest it damages the public image of the court as an impartial judicial institution”.
Justice Mandokhail and Justice Shah said they had “serious reservations on the mode and manner how [of] the original jurisdiction of this court under Article 184(3) was invoked suo motu in the present matter as well as on the constitution of the nine-member bench” which they expressed in the additional notes of the Feb 23 order.
“The original jurisdiction of this court under Article 184(3) is an ‘extraordinary’ jurisdiction, which is to be exercised ‘with circumspection’. It confers the ‘enabling powers’, and the court is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the fundamental rights,” the dissenting note said.
“As the jurisdiction of this court under Article 184(3) is concurrent with that of the high courts under Article 199, if the jurisdiction of any of the high courts has already been invoked under Article 199 and the matter is pending adjudication, then the two well-established principles are also to be considered before exercising its jurisdiction under Article 184(3) by this court:
- First, where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts, then he is bound by his choice of forum and must pursue his remedy in that court
- Second, if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction, then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed and is pending adjudication in the lower court, otherwise it would deprive one of the parties, of his right of appeal.“
They said that if the Lahore High Court (LHC) would have decided the intra-court appeals pending before it regarding the delay in polls while the Peshawar High Court (PHC) would have decide the writ petition pending before it the SC had not taken up the suo motu notice.
The judges said that the “the present suo motu proceedings and the connected constitution petitions do not constitute a fit case to exercise the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution”.
They argued that the SC did not have the power to “make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a high court, directly or indirectly”.
“Hence, the present suo motu proceedings initiated, and the connected constitution petitions filed, under Article 184(3) of the Constitution are not maintainable in view of the constitutional bar of Article 199(5) read with Article 175(2) of the Constitution, in so far as they relate to the matter already decided by the single bench of the LHC in exercise of its jurisdiction under Article 199 of the Constitution.”
The two also underlined that in order to strengthen the institution and to ensure public trust and confidence in the top court, “it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the CJP”.
“This court cannot be dependent on the solitary decision of one man, the chief justice, but must be regulated through a rule-based system approved by all judges of the court under Article 191 of the Constitution, in regulating the exercise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of benches to hear such cases; the constitution of regular benches to hear all the other cases instituted in this court; and the constitution of special benches.
“The power of doing a ‘one-man show’ is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.
“One-man show leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power. In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exercise of power and promote the transparency and accountability.
“When one person has too much power, there is a risk that the institution may become autocratic and insulated, resulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people. We must not forget that our institution draws its strength from public perception. The entire edifice of this court and of the justice system stands on public trust and confidence reposed in it.”
“Therefore, one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule,” they noted.
They said that the SC had “time and again held how public functionaries ought to structure their discretion but has miserably failed to set the same standard for itself leaving the chief justice with unfettered powers in the matter of regulating the jurisdiction under Article 184(3) (including suo moto) and in matters of constituting benches and assigning cases.”
They said that such “unbridled power” enjoyed by the CJP had brought “severe criticism and lowered the honour and prestige of this court”.
The two judges proposed that the apex court’s extraordinary jurisdiction under Article 184(3) should only be invoked only if a majority of all the judges or the first five or seven judges of the court, including the chief justice, agreed to it. They said that the criterion for selecting cases to be dealt with under this jurisdiction should also be “clearly laid down in the rules”.
The two judges also said that the core principle of federal was provincial autonomy which was defined as the autonomous functioning of the provincial legislative, executive and judicial institutions.
“The federal institutions must abide by this principle in federalism. Under our Constitution, a high court of a province is the highest constitutional court of that province and is conferred with the jurisdiction under Article 199 of the Constitution to judicially review the acts and proceedings of all persons performing, within its territorial jurisdiction, functions in connection with the affairs of the federation, a province or a local authority.
“The principle of provincial autonomy requires that when a matter which relates only to a province, and not to the federation or to more than one provinces, the high court of that province should ordinarily be allowed to exercise its constitutional jurisdiction to decide upon that matter, and this court should not normally interfere with and exercise its jurisdiction in such a matter under Article 184(3) of the Constitution, which jurisdiction is primarily federal in character.
“The federal structure of our Constitution necessitates that the autonomy and independence of the apex provincial constitutional court of a province, should not be readily interfered with by this court but rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.”
The judges noted that due to the suo motu proceedings and the connected constitutional petitions, the top court had been “ushered into a ‘political thicket’”.
“Where the political parties and the people subscribing to their views are sharply divided, and their difference of opinion has created a charged political atmosphere in the country, the involvement and interference of this court in its discretionary and extraordinary jurisdiction under Article 184(3) of the Constitution into a ‘political thicket’, would be inappropriate and would inevitably invite untoward criticism of a large section of the people.”
The judges continued: “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. A democratic political process, however that may be, is best suited to resolve such matters.”
They said that litigation was not a consultative or participatory process and could not mediate in issued where there was “room for reasonable people to disagree; only a political process can resolve such issues and adjust disagreements”.
“Thus, a nation cannot reduce divisions among its people unless their representatives — the politicians — adopt and participate in the democratic process of political dialogue, in finding solutions to the people’s social, economic and political problems,” they said.
Reconstitution of bench
Justice Mandokhail and Justice Shah held that a judge forming part of a bench once constituted and seized of the case assigned to it could not be excluded from that bench unless he recused himself from hearing that case or became unavailable to sit on the bench for some unforeseen reason.
“In this case, the two Hon’ble Judges having decided the matter, left the option of their sitting or not sitting on the bench with the Hon’ble Chief Justice, for further hearing of the case. The exercise of this option by the Hon’ble Chief Justice has no effect on the judicial decision of those two Hon’ble Judges passed in the case.
“The reconstitution of the bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the bench and could not nullify or brush aside the judicial decisions given by the two Hon’ble Judges in this case, which have to be counted when the matter is finally concluded.”
They argued that Justice Ahsan and Justice Naqvi had not been removed from the bench but had voluntarily recused themselves. “Thus, their short orders are very much part of the case, therefore, the administrative order of reconstitution of the bench by the Hon’ble Chief Justice cannot brush aside the judicial decisions of the two Hon’ble Judges who had decided the matter when the case was heard by a nine-member bench.”
They further said that the failure to count the decisions of Justice Afridi and Justice Minallah “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 Hon’ble Chief Justice”.
“Therefore, we are of the opinion that the dismissal of the present suo motu proceedings and the connected constitution petitions is the order of the court by a majority of 4 to 3 of the seven-member bench.”
After the SC’s March 1 verdict, the electoral watchdog had written separate letters to the president and the KP governor for holding the provincial elections. Subsequently, the president had announced that elections in Punjab will be held on April 30.
But on March 22, the ECP, in a surprise move, put off Punjab Assembly elections by more than five months to Oct 8, citing the “deteriorating security situation” in the country — a move that has since been challenged in the SC.
Meanwhile, the KP governor had fixed May 28 as the date for polls in the province but later backtracked on his decision while calling for “key challenges” to be addressed before a new date is announced.
Following the ECP’s decision to postpone the Punjab polls, earlier this week the governor also proposed the same date — Oct 8 — for holding elections.
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