This piece was originally published on March 30, 2023
The National Assembly passed on Wednesday the Supreme Court (Practice and Procedure), Bill 2023, aiming to deprive the office of the Chief Justice of Pakistan (CJP) of powers to take suo motu notice and constitute benches in an individual capacity.
The legislation was introduced in Parliament a day earlier against the backdrop of cases concerning the suo motu proceedings initiated by the CJP for the holding of general elections in Punjab and KP and a hard-hitting dissenting note by two justices of the Supreme Court, Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail.
In their detailed reasoning, the two judges called for “revisit[ing] the power of one-man show enjoyed by the office of the Chief Justice of Pakistan”, holding that the “court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system…”
The justices did not hold back: “The power of doing a one-man show is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.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.”
The strongly worded, thinly veiled criticism of the “one-man show” by the justices for their “own brother” is unprecedented in the judicial history of Pakistan, except perhaps the treatment meted out to former CJP Sajjad Ali Shah by brother justices in the late 1990s.
In their written detailed order, Justice Mansoor and Justice Mandokhail have taken exception over the manner in which the CJP had reconstituted the original nine-member bench to a five-member bench, when he did not pass a specific order to exclude the two justices who had announced their final decision to dismiss the suo motu proceedings and had left their fate of retention in the bench to the CJP.
In their dissenting note, Justices Mansoor and Mandokhail also questioned how the two judges, who had given their final decision, could be excluded from the bench when no order for their removal was made by the CJP.
The govt moves in
As explained above, a day after Justice Mansoor and Justice Mandokhail released their detailed dissenting note, the ruling coalition introduced the Bill on the subject, titled Supreme Court (Practice and Procedure) Bill, 2023 in Parliament for consideration.
The presentation of the Bill was accompanied by very critical speeches and the passing of an unprecedented resolution in the National Assembly that deemed the judiciary’s “unreasonable interference in political matters the cause of political instability”. The resolution further called for “the matters requiring collective wisdom and in which a request for a full court bench of the Supreme Court to be heard by the full-court.”
The Bill was passed by the National Assembly the very next day (Wednesday) and is expected to receive the nod from the Upper House of Parliament soon.
Besides the constitution of benches, which has been the key source of contention among the legal fraternity in recent days, the issue is further complicated by the extraordinary original jurisdiction conferred upon the Supreme Court by the Constitution. It is under this jurisdiction that suo motu cases and constitutional petitions are taken up by the Supreme Court.
Practically, this means that the CJP may take up any issue of interest to him, fix it for hearing before a bench of his choosing, which almost always is the bench headed by himself and give a decision of his liking. Most importantly, there is no remedy of appeal against the decision by the SC in its original jurisdiction.
As Justice Mansoor emphasised, “This jurisdiction of the Court is special and extraordinary, for in the exercise of it the Court acts as the first and the final arbiter, which leaves a party aggrieved of the determination made by the Court with no remedy of appeal to any higher court.”
The fracturing of the Supreme Court
The “outburst” of the Parliament and the two justices is a culmination of a long-running discontentment among the legal fraternity, junior judges, and civil society. In recent years, it came to the fore during the tenure of CJP Saqib Nisar and the manner in which the original constitutional jurisdiction, including suo motu jurisdiction, was being exercised to interfere in political and executive matters.
Even at that time, there were muted rumblings within the judiciary but without much success. When Justice Qazi Faez Isa, sitting on a bench in Peshawar with CJP Nisar and Justice Mansoor Ali Shah, raised serious questions about the exercise of suo motu powers, he was “unceremoniously” removed from the bench during the hearing.
Justice Isa subsequently authored a solitary note on his abrupt removal and the need to structure the original constitutional jurisdiction of the Supreme Court. Subsequently, at a later stage, a few days before CJP Nisar’s retirement, Justice Mansoor also joined Justice Isa and decried the manner in which the bench was abruptly reconstituted and Justice Isa removed from the bench, holding “that the reconstitution of the Bench by the Hon’ble Chief Justice in the present case is unwarranted and unprecedented and undermines the integrity of the system.”
The public calls for reforming and structuring the CJP’s administrative powers grew louder during and after the presidential reference against Justice Isa was dismissed. The legal fraternity alleged that during the tenure of CJP Gulzar and later as well, Justice Isa, and the judges who sided with him were not included on the benches hearing important constitutional matters.
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In fact, Justice Isa, for the last many years, has been hearing the most mechanical and “least important” cases. CJP Gulzar’s tenure became notorious for not transparently fixing cases, with prominent legal historian and senior bar leader Hamid Khan terming the practice, The Gulzar Doctrine.
Is history repeating itself?
Here, I would like to innocently quote Marx’s opening lines from his famous essay, ’The Eighteenth Brumaire of Louis Bonaparte’:
“Hegel remarks somewhere that all great world historic facts and personages appear, so to speak, twice. He forgot to add: the first time as tragedy, the second time as farce. Caussidière for Danton, Louis Blanc for Robespierre, the Montagne of 1848 to 1851 for the Montagne of 1793 to 1795, the nephew for the uncle.”
During his tenure from 1994 to 1997, Chief Justice Sajjad Ali Shah displayed an autocratic style of constituting benches, which antagonised senior judges who were not consulted or even made part of important constitutional cases. The inter-institutional struggle soon became quite absurd.
On one occasion, when a three-member bench headed by CJP Sajjad suspended the 13th Constitutional Amendment, which removed the infamous presidential power of dissolution of the National Assembly under Article 58(2)(b), within minutes, a quickly assembled 10-member bench of the Supreme Court suspended the suspension order of the CJP-led bench.
In another case, a Supreme Court bench assembled at the Quetta Registry, through a judicial order, restrained CJP Sajjad Ali Shah from performing his judicial and administrative functions. When the controversy escalated, another SC bench in Peshawar endorsed the decision of the Quetta Registry. The infighting ultimately led to patricide, if the Roman designation, pater familias (the male head of a household), for the CJP is taken seriously. CJP Sajjad Ali Shah was removed from office — the office of Chief Justice of Pakistan — by a 10-judge bench of his own court, headed by former CJP Saeeduzzaman Siddiqui.
After a long lull, the controversies around the composition of benches and assignment of cases surfaced again during the tenures of Justice Saqib Nisar and Justice Gulzar Ahmed. In December 2019, the then CJP Asif Saeed Khosa proposed amendments to the Supreme Court Rules, 1980, to regulate the suo motu powers exercised by the CJP. The proposal aimed to establish a system of checks and balances to constrain the wide discretion of the CJP, but failed to reach any consensus among the judges.
Existing legal framework — Supreme Court Rules, 1980
In legal theory, all judges in the Supreme Court are equal when performing their judicial functions. However, with respect to their administrative role, the chief justice is the ‘first among equals’ and the ‘master of the roster’. He decides when a case is listed for hearing and which judges will adjudicate it.
His authority in this respect is provided for in the Supreme Court Rules, 1980, framed under the constitutional authority of Article 191 of the Constitution. The SC Rules stipulate that every cause, appeal or matter shall be heard and disposed of by a bench nominated by the CJP.
The judgments of the Supreme Court have affirmed that the CJP has the “sole prerogative to constitute any Bench with any number of Judges to hear any particular case”. The chief justices of the respective high courts also hold comparable powers, making it an equally contentious matter.
Most of the merits and demerits of concentration of power in the hands of one person discussed in this article are also applicable to the chief justices of the high courts of Pakistan. Meanwhile, Article 191 also provides room for the Parliament to legislate and regulate the procedure of the Supreme Court — a fact highlighted by Federal Minister for Law and Justice Azam Nazeer Tarar on the floor of the Assembly on Wednesday.
Fixation of cases in comparative jurisdictions
In comparative jurisdictions, where the chief justice enjoys wide discretionary powers as is the case in Pakistan, prominent jurists and scholars have expressed apprehensions that this casts doubts on the courts’ integrity and impartiality.
For instance, the chief justice in India enjoys similar powers to constitute benches and assign cases. A controversy arose in 2018, when four senior judges of the Indian supreme court held a press conference where they expressed serious apprehensions about the chief justice’s powers to assign cases, which they believed were being misused for political objectives.
In the United States, the chief justice of the supreme court has very limited discretion as all the cases are heard by the entire court of nine justices. In the US federal appellate courts, where the entire appellate court does not decide every case, appeals are decided by randomly assigned three-judge panels.
Similarly, random assignment of cases is a norm in federal district courts, according to the Local Rules of the United States District Courts. Under this system, cases are randomly assigned, without regard to identity of the parties and the judges to whom the cases are assigned. This ensures equitable distribution of cases, reduces the likelihood of a single judge or group of judges dominating the court’s docket, avoids judge shopping and reinforces the principle of impartiality of judges.
Assigning cases and constituting benches without a clear and objective criteria is inconsistent with international standards of judicial independence and impartiality, and the much revered principle of rule of law.
While international standards do not prescribe a universal system for allocation of cases to individual judges, they clarify that any system of assignment of cases should not undermine the independence of courts and the impartiality of judges who adjudicate those cases.
The UN Special Rapporteur on the Independence of Judges and Lawyers recommends an objective mechanism for allocation of cases such that assignment of certain cases to a specific group of judges is avoided. Similarly, the Venice Commission advises that case allocation should be based on transparent criteria established by law or special regulations. Examples of such criteria include drawing dots, assignment according to alphabetical order or predetermined court management plans.
Article 101(1)(2) of the German constitution considers the ‘right to a lawful judge’ as a way of preventing external influences on the judiciary. To ensure this, a management group, headed by the president of the court along with other judges, decides how cases are allocated. A management plan is determined that includes detailed and objective criteria to prevent manipulation and subjective selection of judges.
From the above examples, we see that the persuasiveness of judicial decisions is based not only on the quality of their reasoning, but more importantly on the public’s confidence in the judiciary. The higher the level of trust in the impartiality of judges, the greater is the public’s willingness to accept the courts’ authority. Therefore, it is crucial to have safeguards in place against arbitrary case allocations to prevent even the slightest suspicion of illegitimate influence on the functioning of the judiciary.
The current system of case allocation in Pakistan poses significant risks to the perceived impartiality of judges. A radical restructuring of the administrative powers of the CJP has now become necessary.
Moreover, the need for empowering all the justices is underscored by the standards that the Supreme Court itself has set for the executive branch of the state. The Supreme Court, in the Mustafa Impex case (2016), radically empowered the cabinet and reduced the role of the prime minister to merely the first among equals (ministers) by interpreting the description of the federal government provided in the Constitution.
According to the SC’s interpretation, since the Constitution describes the federal government as the prime minister and the ministers, all the executive powers that are conferred upon the federal government must be exercised by the premier and the cabinet, not the prime minister alone as was the practice earlier. Approval of the cabinet was made therefore mandatory for the prime minister.
Interestingly, the Constitution, in Article 176, defines the Supreme Court in similar terms as it describes the federal government in the corresponding Article 90.
Article 176 states that “The Supreme Court shall consist of a Chief Justice to be known as the Chief Justice of Pakistan and so many other Judges as may be determined by Act of Majlis-e-Shoora (Parliament).”
Surprisingly, the Supreme Court has refused to apply the same exacting standard to itself, which it has imposed upon the executive. For the establishment of rule of law — consistency of judicial interpretation and standards being its foundational pillar — it is necessary that the powers conferred upon the Supreme Court be exercised by the entire court, as is done in the US, not by a bench of the CJP’s choosing.
If this appears to be inefficient or impractical, then intellectual and judicial honesty and integrity demands that the Musafa Impex judgments be revisited and the rigorous limitation on the power of the PM imposed by the SC be revised.
Structuring of the discretion of the CJP
According to Justice Mansoor Ali Shah, “This Court has 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 motu) and in matters of constituting benches and assigning cases. It is this unbridled power enjoyed by the Chief Justice in taking up any matter as a suo motu case and in constituting Special Benches after the institution of the cases and assigning cases to them that has brought severe criticism and lowered the honour and prestige of this Court.
“In order to build a strong, open and transparent institution, we have to move towards a rule-based institution. The discretion of the Chief Justice needs to be structured through rules. This Court has held that structuring discretion means regularising it, organising it and producing order in it, which helps achieve transparency, consistency and equal treatment in decision-making — the hallmarks of the rule of law.”
With the Supreme Court having failed to regulate itself — despite repeated calls by judges and even an attempt by former CJP Khosa — the Parliament has stepped in and passed the Supreme Court (Practice and Procedure) Bill, 2023, under the powers conferred to it by Article 191 of the Constitution.
The legislation is now likely to be challenged before the Supreme Court, with the proverbial ball likely to be in the chief justice’s court again.
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