Open discord

Published March 29, 2023

IT is quite an extraordinary situation: a section of the superior judiciary has thrown down the gauntlet to the Supreme Court chief justice in direct, albeit respectful, terms.

The schism within the apex court has been simmering for some time. But the discord has now become untenable, given the reservations Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail have spelled out in their 28-page order — reservations articulated before by several other judges, but never with such clarity.

If there is, after this, no change in the way matters at the highest court in the land are being handled, the institution’s public standing could sustain long-term damage.

There is also the question of legacy. As we have seen recently, even the country’s top judges are not immune to uncharitable public opinion after they hang up their robes.

The order, pertaining to the March 1 verdict wherein the top court ruled 3-2 that polls in KP and Punjab must be held within 90 days, dilates mainly upon two issues. One is the SC’s original jurisdiction under Article 184 (3) and whether it was within its rights to take up the matter in suo motu proceedings.

The judges stress that the original jurisdiction is an “extraordinary” one, to be exercised “with circumspection”. Briefly, they have ruled that given that Article 199 confers the same jurisdiction — enforcement of fundamental rights — on the high courts, and as the LHC had already decided on the matter in question (and which is being adjudicated in intra-court appeals), the apex court could not exercise its original jurisdiction here.

Only its appellate jurisdiction would apply in such a case. In the light of these observations, they have held that the suo motu proceedings stood dismissed by a majority of 4-3, counting the two judges who had given their decision early in the proceedings, and who could not have been excluded from the bench nor their decisions excluded from the final decision unless they had specifically recused themselves. This is diametrically opposed to the March 1 order, whose legal standing may now be in doubt.

Perhaps even more devastating is the part of the ruling that circles back to its opening reference to an “imperial Supreme Court”, where the office of the chief justice is a “one-man show”.

The “unbridled power” enjoyed by the country’s top judge in taking suo motu notice and in the constitution of special benches to hear cases, it says, has “lowered the honour and prestige of this court”.

There could not be a more scathing assessment of the conduct of the highest judicial office in the land. Had the collective wisdom of the full bench been harnessed in cases of constitutional significance — and not doing so goes against all logic and principles of fairness — such an outcome could have been avoided.

Published in Dawn, March 29th, 2023

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