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Saturday February 24, 2024

Two apex court judges’ dissenting order: CJP’s ‘one man show’ power must be regulated

"This court cannot be dependent on the solitary decision of one man, Chief Justice," reads the 27-page judgement

March 28, 2023
(L to R) Justice Syed Mansoor Ali Shah, Chief Justice of Pakistan Umar Ata Bandial, and Justice Jamal Khan Mandokhail. — Supreme Court of Pakistan website
(L to R) Justice Syed Mansoor Ali Shah, Chief Justice of Pakistan Umar Ata Bandial, and Justice Jamal Khan Mandokhail. — Supreme Court of Pakistan website

ISLAMABAD: Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, judges of the Supreme Court, on Monday observed 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.

The two judges issued a 27-page order, stating that the suo motu case regarding the Punjab and Khyber Pakhtunkhwa (KP) election dates announcement was dismissed by a majority of four judges out of seven.

The order’s preface says, “The jurisdiction of a court is determined by the Constitution and laws, not by caprice or convenience of the judges..... When caprice and convenience of the judges take over, we enter the era of an “imperial Supreme Court”.

They observed that the original jurisdiction of the apex court under Article 184(3) of the Constitution is not only “discretionary but also “special” and “extraordinary”, which is to be exercised “with circumspection only in the “exceptional cases of public importance relating to the enforcement of fundamental rights that are considered “fit” for being dealt with under this jurisdiction by the court.

They further held 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 approved by all judges of the court under Article 191 of the Constitution, 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 the court; and the constitution of special benches.

“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.”

Justice Shah and Justice Mandokhail held that 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 two judges maintained.

They observed that 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 judges stated that “the suo motu proceedings, in the facts and circumstances of the case, are wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution, besides being initiated with undue haste”.

Justice Mansoor Ali Shah and Justice Jamal Mandokhail observed that the matter did not constitute a fit case to exercise extraordinary original jurisdiction of the apex court under Article 184(3) and was this “not maintainable” as the “same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial high courts in Lahore and Peshawar

The order maintained that there was “no justification to invoke” the court’s extraordinary jurisdiction to initiate suo motu proceedings, as a single bench of the Lahore High Court “has already decided the matter in favour of the petitioner before the said high court”. It added that the intra-court appeals filed against the said judgment were pending before a division bench of the LHC and none of the petitioners had approached the apex court.

Both the judges held that they were in agreement with the decisions of Justice Yahya Afridi and Justice Athar Minallah, when the questioned the intent of the suo motu and urged the constitution of a full bench.

They further held that the apex court in the exercise of its original jurisdiction under Article 184(3) of the Constitution does not have the power to make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a high court, directly or indirectly.

“We believed that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions, had become the Order of the Court by a majority of 4-3 while our other three learned brothers held the view that their order was the Order of the Court by a majority of 3-2,” the judges maintained.

Because of the difference of opinion, Justice Shah and Mandokhail said that the order of the court, which is ordinarily formulated by the head of the bench could not be issued.

“We are of the considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the Order of the Court with a majority of 4 to 3, binding upon all the concerned”, the two judges maintained.

They held that the answer lies in understanding the administrative powers enjoyed by the chief justice in reconstituting a bench, when the bench once constituted and assigned a case has commenced hearing of a case.

“This court has held in H.R.C. No.14959-K of 2018 held that “once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench,” the two judges held

They further held that the bench may also be reconstituted if it is against the rules and requires a three-member bench instead of two adding that in such eventualities the bench passes an order to place the matter before the chief justice to nominate a new bench.

“Therefore, once a bench has been constituted, cause list issued and the bench is assembled for hearing cases, the chief justice cannot reconstitute the bench, except in the manner.

“We endorse the above view and hold that a judge forming part of a bench once constituted and seized of the case assigned to it cannot be excluded from that bench unless he recuses himself from hearing that case or becomes unavailable to sit on the bench for some unforeseen reason,” the two judges maintained adding that after having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a judge in the later proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the bench.

In this case, they held, the two judges having decided the matter, left the option of their sitting or not sitting on the bench with the chief justice, for further hearing of the case.

Justice Shah and Justice Mandokhail held that the exercise of this option by the chief justice has no effect on the judicial decision of those two judges passed in the case, adding that the reconstitution of the bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the bench and could not nullify or brush aside the judicial decisions given by the two judges in this case, which have to be counted when the matter is finally concluded.

It is important to underline that the two judges (Justice Ijazul Ahsan and Justice Mazahar Ali Akbar Naqvi) were not removed from the bench but had voluntarily recused themselves. Thus, their short orders are very much part of the case; therefore, the administrative order of reconstitution of the bench by the chief justice cannot brush aside the judicial decisions of the two judges who had decided the matter when the case was heard by a nine-member bench.

“Failure to count the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) would amount to excluding them from the Bench without their consent, which is not permissible under the law and not within the powers of the Chief Justice”, the two judges held, adding 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.

“When one person has too much power, there is a risk that the institution may become autocratic and insulated, resulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people”, they held

“These are the reasons for our short order dated 01.03.2023, dismissing the present constitution petitions and dropping the suo motu proceedings, with the observation that the respective high courts shall decide the matters pending before them within three working days,” the two judges held

They further held that the suo motu proceedings, in the facts and circumstances of the case, are wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution besides being initiated with undue haste.

“There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single Bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said high court vide judgment dated 10.02.2023 and the said judgment is still in the field,” they observed.

“We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah, JJ., and dismiss the present constitution petitions and drop the suo motu proceedings, 1st March, 2023”, the two judges concluded.