LAHORE: A large number of constitutional experts and lawyers backed the judgment issued Monday by two Supreme Court judges, Justice Mansoor Ali Shah and Justice Jamal Mandokhail; a detailed verdict in which they raised serious concerns about the unfettered powers of the Chief Justice of Pakistan (CJP) regarding suo motu notices and formation of benches.
According to legal experts, Monday’s judgment was authored by Justice Shah on behalf of two judges – himself and Justice Mandokhail – while two other judges – Justice Yahya Afridi and Justice Athar Minallah – had already given their opinion that the petition was not maintainable. This latest judgment has clearly exposed the divide within the superior judiciary once again, and the Punjab elections suo motu case “stands dismissed”.
Majority decision, not a dissenting note
Legal experts believe that it is a majority decision (4-3 verdict, and not 3-2) after which the Punjab elections suo motu notice, and associated constitutional petitions, are dismissed as ‘not maintainable’.
Talking to The Friday Times (TFT), former attorney general Ashtar Ausaf said it is a majority judgment of 4-3, and not a dissenting note, in his opinion.
“Whenever there is a matter like this where difference has arisen about the decision than dissenting note is there along with the majority decision where in the end their is a small note is written that majority of so many the petition is accepted of dismissed…and it is signed by all the judges but here you didn’t see anything like this as there is no order of the court,” Ausaf said.
When four out of seven judges say that the case is not maintainable, then that is the majority decision.
Secondly, he said Justice Shah and Justice Mandokhail were not wrong when they say that the two judges, Justice Mazahar Ali Akbar Naqvi and Justice Ijazul Ahsan, had recused themselves from the bench of their own accord.
Ausaf recalled that whereas Justice Yahya Afridi and Justice Athar Minallah didn’t recuse themselves from the bench, they had said that in their opinion the petition was not maintainable, which they had clarified at the start of suo motu hearing. “Now when it is a decision of seven judges, and four of them are saying that it is not maintainable, then that is a majority decision”.
Agreeing with him, leading jurist Irfan Qadir, who is currently serving as Special Assistant to Prime Minister on accountability and interior, told TFT that he completely agreed with the issues raised by the four honourable judges, and in his view theirs was the decision of the bench that adjudicated the suo motu notice.
Advocate Mian Dawood also concurred and said that after today’s majority decision written by Justice Shah, the hearings carried out by CJP on fresh petitions of Pakistan Tehreek-e-Insaf (PTI) on Monday were no longer maintainable either, and the bench hearing those cases had become non-functional too.
“There is no legal status of today’s court proceedings,” Dawood said on Monday.
Another leading constitutional expert who wished not to be named told TFT that it is a clear majority decision, but Chief Justice Umar Ata Bandial will not accept it only because these four judges are saying this, and this would lead to “a deeper crisis” within the judiciary.
Speaking to TFT, legal expert Abdul Rauf Shakoori said the detailed judgment of Justice Shah, written for himself and Justice Mandokhail, appears to be a landmark judgment removing various confusions that arose after the judgment of the five-member bench was passed on March 1, 2023.
For Shakoori, the current suo motu related to election dates stems from an unrelated petition related to civil service matters, which was being heard by a two-member bench of Justice Ijaz ul Ahsan and Justice Mazahar Ali Akbar Naqvi.
“The CJ has been single handedly deciding as to who will hear any case. Additionally, in the last decade the numerous Chief Justices have found a love for ‘suo moto’ hearings, where they themselves take note of any particular event and effectively become applicant and at the same time hear those applications which they undertook as ‘suo motu’.”
Monday’s detailed judgment has amplified concerns over the Chief Justice’s powers in an unprecedented manner.
Shakoori was of the opinion that the power has been clustered in the hands of a single person, who has been relying on three to four judges in every case concerning any political-legal matter, and the interpretation of law is vested in their hands.
“The inclination of a few judges is so clear and obvious now that whenever a petition relating to political or allied legal matters is moved to apex court, independent analysts can make a fair guess about expected bench to be formed by CJP and the expected outcome,” he stated.
The difference of opinion over this approach had been raised in a subtle manner from within the court, however Monday’s detailed judgment has amplified these concerns louder than before, and in an unprecedented manner.
Shakoori noted that, unfortunately, due to lack of accountability, the established trend of like-minded judges (group of five) in cases of public importance has caused so much damage to the country, its institutions and its democratic values.
“These like-minded judges do not allow the elected prime minister to use his administrative powers without the approval of the cabinet,” he said.
However, Shakoori noted that the Chief Justice, without realising the spirit of Article 176 of the Constitution, unilaterally decided all the matters. “Article 176 clearly states that the Supreme Court collectively means CJP and all the judges, so how can a single judge, or some handpicked judges, take up important constitutional decisions affecting the entire federation?” Shakoori asked.
CJP’s authority remains unchanged as ‘first among equals’ on SC
Barrister Taimur Malik believes that it is a detailed verdict by two competent judges of the Supreme Court of Pakistan and raises some important points including the need for rules for exercise of suo motu powers and the constitution of SC benches.
“However, in my view, it doesn’t impact the earlier majority judgment of the Supreme Court on this matter,” Barrister Malik said.
“The Chief Justice remains the first among equals and retains the powers to constitute benches, and this won’t change just because of this note by two Honourable Judges. However, the question regarding CJ’s powers is certainly something that should be considered seriously and reformed soon.”
‘One-man show’ concentrates power in the hands of CJP
In a detailed 27-page judgment by the two judges they stated that, “we find it essential to underline that in order to strengthen our institution and to ensure public trust and public confidence in our Court, it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan.”
“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,” the judgment reads.
The judgment stated that, “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,” the judgment stated.
The detailed judgment notes “ironically” how the Supreme Court has ordered public functionaries to structure their discretionary powers but “miserably failed to set the same standard for itself”.
The judgment further stipulated that, “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 transparency and accountability,” the judgment reads.
The verdict maintained that, “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, a one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule,” they stated while adding that, “on the other hand, the collegial model ensures good governance as it rests on collaboration, shared decision-making and balance of power to ensure the best outcome.”
“The Chief Justice of this Court is conferred with wide discretion in the matter of constituting Benches and assigning cases to them under the present Supreme Court Rules 1980,” the detailed verdict reads.
“Ironically, 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 moto) and in matters of constituting benches and assigning cases,” the judgment further states.
“Unbridled power” enjoyed by CJP
The judgment stated that it was this “unbridled” power enjoyed by the Chief Justice in taking up any matter as a suo motu case, in constituting Special Benches after the institution of the cases, and in assigning cases, which has brought severe criticism and lowered the honour and prestige of the Supreme Court.
“Our acts and decisions as members of a constitutional institution are recorded in history and commented upon,” the judgment reads. It quotes political scientist and legal scholar Yasser Kureshi who, in his recent book “Seeking Supremacy: The Pursuit of Judicial Power in Pakistan” criticised the unfettered power of the CJP thus:
“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 regularizing it, organizing it and producing order in it, which helps achieve transparency, consistency and equal treatment in decision-making – the hallmarks of the rule of law.”
There is an urgent need to frame “a balanced, consistent and indiscriminate policy” to invoke and exercise the Supreme Court’s extraordinary jurisdiction.
“The seven instruments that are usually described as useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents, and fair procedure. Our jurisprudence must first be applied at home,” the judgment stated.
The judgment further reads: “Apprehending the misuse of the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution, Ajmal Mian, CJ., speaking for the majority of a seven-member Bench of this Court in Wukala Mahaz, emphasized in 1998 that ‘a balanced, consistent and indiscriminate policy’ is to be evolved by this Court for invoking and exercising this extraordinary original jurisdiction of the Court.”
“The later years proved his apprehension true. The experience of the last very two decades has shown a rather more need to frame ‘a balanced, consistent and indiscriminate policy’ for invoking and exercising this jurisdiction. Leaving it to the unstructured discretion of one person – the Chief Justice – has utterly failed.”
“With the change in the office of the Chief Justice, there is a change in the ‘policy’ of invoking and exercising the jurisdiction under Article 184(3) of the Constitution.”
How did former CJP Saqib Nisar “misuse” suo motu ‘powers’?
The detailed judgment recalled that “During the tenure of Chief Justice Saqib Nisar (2016- 2019), the Supreme Court used its suo motu powers to intervene in governance to an extent that had never been seen before.”
The judgment reads: “It is hard to do justice to Justice Nisar’s whirlwind of on-bench and off-bench interventions, as he sought to fix all of Pakistan’s socio-economic problems: water purity and distribution, milk production, public sector corruption, hospital management, educational disparities and population control, through the striking of the gavel.”
CJP Nisar launched 30 suo motu cases in first three months of 2018
“Within the first three months of 2018 alone, Nisar launched thirty suo motu cases, often prompted by news articles he read, headlines he watched on the evening news or even posts he saw on social media.”
The judgment points out that “in one case, Nisar took suo moto notice of a photograph circulating on social media that showed a funeral procession passing over sewage in a narrow street.”
“Upon taking suo moto notice, Nisar would then order public officials to present themselves before the Court.”
“During these proceedings, he would typically reprimand public officers and comment on state mismanagement, and in interim orders, he would direct public officers to remedy the issue and report back to the Court, dismiss officers who did not adequately address his concerns and sometimes even issue contempt of court charges against public officials who did not satisfactorily comply with his orders,” the judgment stated.
Most controversial suo motu notice taken by CJP Nisar
The judgment goes on to state that “perhaps the most controversial example of Justice Nisar’s suo moto jurisprudence was his order to construct new dams to resolve Pakistan’s water shortages, ‘for the collective benefit of the nation’.”
The judgment maintains that former CJP Nisar launched a fundraising scheme for donations to pay for the multi-billion dollar dam-building project, authorising televised ads and newspaper articles to openly solicit funding, and even ordering parties convicted in cases of assault, land grabbing and environmental damage to deposit money into the ‘dam fund’, the court’s pet project under then-CJP Nisar.
“Off the bench, Nisar also transformed the role of the chief justice, donning the hat of government inspector and international fundraiser, showing up at hospitals, schools and water plants to assess their conditions, followed by news cameras,” the judgment reads.
CJP Nisar refused to comment
When contacted, former CJP Nisar told TFT that, “I never make comments on judicial verdicts.”
Extraordinary jurisdiction must be rationalised
For Shakoori, the detail judgment sheds light on invocation of suo motu jurisdiction and constitution of the benches, address the concerns related to majority judgment, scope of Article 184(3) in case matters pending before the High Court, federalism, role of parliament, and making rules for regulating the exercise of jurisdiction under 184(3) related to the constitution of the benches. The detailed judgment rightly mentions the concept of “Imperial Supreme Court”, which damages the constitutional system by usurping the power that doesn’t belong to it. By such practices, the Court has – in the minds of the public – turned into just another political institution, which can ultimately undermine its legitimacy and credibility of its judgments.
Shakoori maintained that the detailed verdict denied any “extraordinary” circumstances which warranted invoking the jurisdiction of Supreme Court under Article 184(3), it states that if the jurisdiction of any of the High Courts has already been invoked under Article 199 and the matter is pending adjudication, then the petitioner is bound by his choice of forum and must pursue his remedy in that court. Further, “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.”
Shakoori added that the detailed verdict has shed light on an extremely important matter, i.e. structuring the discretion of the Chief Justice through the Supreme Court rules. There is a dire need to regulate and organise such power so that transparency, consistency and equal treatment in decision-making can be achieved. The detailed judgment by the two members of the bench aptly notes that “Constituting special benches on case to case basis, after the institution of the cases, is complete negation of fairness, transparency and impartiality required of a judicial institution to maintain its legitimacy and credibility of its judgments.”
Shakoori asserted that the discretionary powers vested with the Chief Justice of Pakistan, and its alleged misuse, has tarnished the overall image of the apex judicial institution.
What is the solution?
The judgment states that “it is the making of rules on the matter by this Court in the exercise of its rule-making power conferred on it by Article 191 of the Constitution, which can serve the purpose.”
It explained that such rules may provide that the extraordinary jurisdiction of the Court under Article 184(3) of the Constitution, either on the petition of a person or suo motu by the Court, shall be invoked only if a majority of all the Judges or the first five or seven Judges of the Court, including the Chief Justice, as may be prescribed in the rules, agrees to it while considering the matter on the administrative side.
The Supreme Court of Pakistan Rules 1980 could be amended or revised to introduce more structure, transparency and consistency to the apex court’s extraordinary jurisdiction.
The verdict suggested that, “the criterion for selecting cases for being dealt with under this jurisdiction should also be clearly laid down in the rules, to make the practice of the Court in this regard, uniform and transparent.”
However, Barrister Malik reiterated that the CJP would remain first among equals, and retains the powers to constitute benches. However, he added that the question of CJP’s powers is “certainly something that should be considered seriously and reformed soon”.
Acclaimed lawyer Dr Ikramul Haq, while speaking to TFT, said that the judgment of honorable Justice Shah – representing opinion of two honorable judges who were part of five member bench in Suo Motu Case No. 1 of 2023 – raises fundamental questions in respect of the special jurisdiction under Article 184(3) of the Constitution of Islamic Republic of Pakistan when matter is pending in High Courts.
Dr Haq clarified that, “it is well established that if lis is pending under Article 199 in a High Court, jurisdiction under Article 184(3) is ousted”.
“As regards the constitution of benches, it is already settled by the Supreme Court that once a bench is seized of a matter, it cannot be altered,” Dr Haq opined.
On the issue of discretion in selecting judges for a particular bench, Dr Haq believes there is certainly an urgent need for deliberation amongst the honorable judges of the Supreme Court to consider revisions in the existing rules – Supreme Court Rules, 1980 – that would allay public apprehensions at large.
Legal expert Reema Omer stated that CJP’s unfettered discretionary powers (suo motu, case allocation, appointments, etc.) are eroding judicial independence from within and impeding on Pakistanis’ fundamental rights, including the right to fair trial. “This should be of concern to every citizen of Pakistan, regardless of political affiliation,” she tweeted.
For Ms Omer, the meltdown of some senior lawyers and anchors – over SC judges publicly expressing dissent regarding how the apex court is being run – is baffling.
“Would they rather have a SC that appears ‘united’ than one that functions democratically, transparently, and independently?,” Ms Omer asked.
She believes that the independence of the judiciary is one of the foundations of Pakistan’s constitution and one of its salient features. She deplored that certain segments of the legal profession were considering reform to defend and strengthen judicial independence as a “conspiracy” against the judiciary.
4. Constitution is clear: election must be held within 90 days of PA dissolution
Constitution is also clear: Independence of the judiciary must be ensured (which includes freedom from undue interference from within)
Both are important. And they are not mutually exclusive
— Reema Omer (@reema_omer) March 27, 2023
“Constitution is clear: election must be held within 90 days of PA dissolution,” Ms Omer stated, while adding that “Constitution is also clear: Independence of the judiciary must be ensured (which includes freedom from undue interference from within)”. “Both are important and they are not mutually exclusive,” she concluded.
Lawyer Abdul Rauf Shakoori said that now when the voice within the SC is demanding the regluarisation of powers conferred under Article 184 (3) and in Order XI of the Supreme Court Rules 1980. “The Parliament should play its role now”.
“They should not only amend the Article 209 of the Constitution of Pakistan that gives self-accountability powers to the judges, but also devise the policy for their appointment and removal,” Shakoori said.
Constitution of benches should be through transparent electronic system
Moreover, Shakoori believes that the constitution of the benches should be made through an electronic system and their access should be monitored through logs.
“Any violation of this principle by the registrar or any judge, including chief justice, should be dealt with strict punishment,” he suggested.
Similarly, he maintained that in case of ambiguity or conflict in interpreting any provision of the Constitution, the Supreme Court – rather than interpreting the intent of the legislature related to a specific article – should frame the matter in points of law and refer the same to the Parliament, where elected representatives should interpret that specific article of the Constitution, rather than a court.