The issue of bench composition in the Supreme Court of Pakistan has been a topic of political disagreements for some time
he Supreme Court of Pakistan is the apex court of the country. As such it is the final court of appeal. One of its primary functions is to establish benches to consider the cases brought before it. The formation of benches is governed by Order XI of the Supreme Court Rules, 1980, which lays out comprehensive guidelines on bench composition, case allocation and other relevant issues.
The registrar of the Supreme Court of Pakistan plays a crucial role in administering justice and facilitating the court’s functioning. However, it is the chief justice of Pakistan who wields the ultimate authority to constitute benches and allocate cases to them. The registrar might collaborate closely with the chief justice of Pakistan in determining the bench’s composition and assigning cases to them. This may require taking into account several factors, including the judges’ expertise, the nature of the case and the court’s workload. It is worth noting that even though the registrar of the Supreme Court of Pakistan bears significant responsibilities regarding bench formation, the final decision-making power rests with the chief justice of Pakistan.
The Supreme Court Rules, 1980 (SCR), framed under Article 191 of the Constitution of the Islamic Republic of Pakistan, 1973, establish the criteria for the formation of benches. The chief justice of Pakistan is responsible for constituting benches and assigning cases to them. In a recent case involving Justice Qazi Faez Isa headed by the current chief justice of Pakistan, reported PLD 2021 SC 639, it was summarised that the constitution of benches, their numerical strength and the composition of the review benches (or any bench) are the sole prerogative of the chief justice under Order XI of the Supreme Court Rules 1980. This judgement also held that the chief justice may, at his discretion, constitute a larger bench based on the importance of a matter or other practical considerations.
The rules allow for the formation of a full court, which consists of all the judges of the Supreme Court. The full court may be convened to hear important/ significant cases or to consider matters of administrative importance. Furthermore, the chief justice is the master of the roster under the rules, meaning that they have unrestricted discretion regarding the formation of benches and can establish review benches at their discretion, as outlined in the rules. In another landmark decision in a human rights case decided by former chief justice Mian Saqib Nisar, reported as PLD 2019 SC 183, the court detailed the administrative powers of the chief justice of Pakistan in relation to the formation of benches. It was held that once a bench was established, a cause list issued, and the bench convened to hear the cases, the matter regarding the formation of the bench was outside the purview of the chief justice’s administrative powers and rested with the bench.
Once a bench is established, a cause list issued, and bench convened to hear the cases, the matter regarding the formation of the bench is outside the purview of the chief justice’s administrative powers and rests on the judicial side.
Any member of the bench may, however, recuse themselves from a case due to personal reasons, prior commitments, or illness; or a bench may be reconstituted because it was against the rules, e.g. a three-member bench was required instead of a two-member one, and an order would be passed to place the matter before the chief justice to nominate a new bench.
The issue of bench composition in the Supreme Court of Pakistan has been a topic of political disagreements for some time. Various stakeholders, including political parties, civil society groups and lawyers, have raised several concerns. One of the primary criticisms is that the composition of the benches lacks diversity and does not reflect the country’s demographic makeup. Many argue that judges from a specific province or perceived to be affiliated with a particular political group dominate the current bench, potentially leading to bias in decision-making and undermining public trust in the judiciary.
Some commentators have accused the Supreme Court of Pakistan of being ‘politicised’ and interfering in political affairs. This has led to allegations that the court is serving as a tool of the ruling party instead of an independent institution upholding the rule of law. The composition of the benches in the Supreme Court has faced political criticism for various reasons, including concerns about diversity, transparency in the appointment process and politicisation of the court. These issues emphasise the significance of ensuring an impartial and independent judiciary that enjoys public trust. Additionally, political parties and some members of the Judiciary have also levelled criticism against the constitution and management of benches. On July 21, 2018, during his address with the District Bar Association, Rawalpindi, Justice Siddiqui accused the Inter Services Intelligence of approaching the Islamabad High Court chief justice to fix cases and manage the bench. However, the chief justice denied these allegations. Recently, the most senior judge of SC refused to hear cases after the registrar was reported to have changed some benches without consulting the judges concerned and other stakeholders. However, the registrar stated that the changes were approved by the CJP and the cases were rescheduled accordingly.
The formation of benches is a significant function of the Supreme Court of Pakistan. The Supreme Court Rules, 1980, provide detailed guidelines on bench composition, case allocation and other related matters. In the case law reported in PLD 2017 SC 142, it was held that bench composition was covered by the Supreme Court Rules, which clearly stated that no litigant or lawyer could be permitted to ask that his case be heard by a bench of his choice. Ultimately, the chief justice of Pakistan bears the responsibility to constitute benches. In practice, they consider various factors such as complexity of the case, legal issues raised in the case, judges’ expertise and workload. The rules also include provisions for rotation of judges and the appointment of ad hoc judges to ensure timely and efficient case resolution.
The writer is an advocate of the High Court and a PhD scholar