Legal experts and lawyers on Monday weighed in after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court called for revisiting the power of the “one-man show” enjoyed by the chief justice.
The two judges 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 — on the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa.
The top court, in a 3-2 verdict, had directed the electoral watchdog to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP, so that elections could be held within the stipulated timeframe of 90 days.
In the dissenting note, the two judges said that the reconstitution of the bench hearing the suo motu notice case regarding the delay in the provincial elections was “simply an administrative act”.
“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,” the two judges said.
Speaking on Samaa TV programme ‘Nadeem Malik Live’, Supreme Court advocate Salman Akram Raja said that the five-member bench hearing the PTI’s plea challenging the electoral body’s orders to put off Punjab Assembly elections would decide whether the 3-2 or 4-3 ruling was applicable to the March 1 order.
“It will be clear in a day or two. This is no big matter,” he said.
Raja argued that according to the Constitution, smaller benches also represented the apex court’s stance. “There is no rule which says a full court will sit […] we consider the bench to be the Supreme Court. Now, a bench is hearing the matter and it will decide what the previous verdict was. We will have to accept that decision.”
He said “all issues” raised in the dissenting note were important. “They are all good things and they should be carried out in the future,” he said.
Raja said the demand for having certain rules for invoking the top court’s suo motu jurisdiction was also valid. “We should formulate rules immediately. However, we cannot just reject the past by saying that ‘it was a one-man show’ or ‘chief justices made the benches’,” he added.
Raja said that the reason why such rules had not yet been formulated was due to a lack of consensus among the top court judges.
Legal expert Salahuddin Ahmed, while speaking on Geo News, said that bar councils and associations had long demanded that the CJP’s powers be structured and regularised.
“You can’t leave it completely to his discretion and as today’s judgement [shows], very harsh language has been used and judicial imperialism has been mentioned.”
Ahmed said the issue of reforms was one that had been raised many times in the past, adding that many judges in their retirement speeches had voiced complaints about the so-called selective composition of benches in political or sensitive matters.
“When seven to eight or a dozen judges are saying this, then the chief justice is responsible for not allowing the people to get the impression that you are running the institution through certain judges.”
Ahmed said he would not touch upon the merit of who was right between the 3-2 or 4-3 verdicts, adding that he himself thought that elections should take place within 90 days.
He questioned why the chief justice was hesitating to form a full bench so that all judges could sit together and “speak with a collective authority so matters are actually solved instead of becoming more complicated”.
Echoing Raja, he said the current five-member bench would have to decide whether the 3-2 or the 4-3 verdict was applicable.
Ahmed said the sanctity of the SC was being affected by the recent turn of events. “The matter is simple. When you include the same three to four judges in important constitutional and political cases, then naturally people will have reservations,” he added.
He said it was “natural” for doubts and suspicions to arise when the above happened repeatedly.
Barrister Taimur Malik said that while all apex court judges were honourable, “for now, the CJP is the first among equals when it comes to exercising suo motu powers or constituting benches”.
Lawyer Abdul Moiz Jaferii said the development would prove to be the “final push” the SC needed. He said that the CJP should either not interfere or do so with the “full might” of the SC.
“Anything less will lead to a fracturing of the court’s power, its majesty already having been denuded,” he said.