With rifts between senior judges of the Supreme Court deeping and non-cooperation between judges over the constitution of benches under the Practice and Procedure Act 2023, a debate has emerged whether benches constituted by the three-member committee sans a member are legally valid.
On Monday, the bench-fixing committee — in the absence of Justice Mansoor Ali Shah — reconstituted a five-judge bench headed by Chief Justice Qazi Faez Isa to hear a review petition on the top court's 2022 verdict on the defection clause in Article 63-A.
Though the committee is supposed to decide on benches through consensus among a majority of its members, the Practice and Procedure Act (PPA) 2023 — especially after it was amended through a Presidential Ordinance issued last week — binds the senior puisne judge Justice Mansoor Ali Shah to attend the committee meetings. According to Section 2 of the law, every cause, appeal or matter before the Supreme Court shall be heard and disposed of by a bench constituted by the committee comprising the Chief Justice of Pakistan, the next most senior judge of the Supreme Court (senior puisne judge) and a judge of the Supreme Court as nominated by the chief justice, from time to time.
However, the law is silent on what would happen if the senior-most judge, the second member of the committee, is not available or declines to participate in the committee.
For such an eventuality, legal experts rely on sub-section 3 of Section 2 of the Act, which states that the committee's decisions shall be made by a majority.
Constitutional expert Hafiz Ahsan Khokhar told The Friday Times that inference, for the purpose of quorum, shall be drawn from Section 2(3) of PPA in case the senior puisne judge declines to attend the committee meeting. Hence, he believes that the minimum required quorum to hold a meeting of the bench-fixing committee is the attendance of two judges. He added that any of the three members could summon the meeting, but if only two members have assembled, then the committee could commence and decide the constitution of a bench.
He further added that since the quorum is complete with the two members, then the absence of the senior puisne judge would not impact the proceedings of the committee, adding that any decision passed by the remaining two members of the committee shall be considered lawful, adding that such is the spirit of Section 2(3) of the PPA.
However, Advocate Umer Gillani opposed this view. He told The Friday Times that there is no express provision of a minimum quorum for this committee in the law.
"There is no provision regarding a 'minimum quorum', which suggests that unless the committee unanimously delegates any of its functions to one of its members, it can only function at full strength," Advocate Gillani opined.
"Because of the careless and indeed thoughtless manner in which the Practice and Procedure Act, as well as the amending Ordinance, have been drafted, it is really difficult, perhaps impossible, to cleverly decipher the answer to pretty much any question - including this one."
He said that if one goes by the literal interpretation of the law, the committee can only function if all three constituent members are assembled.
On the other hand, Gillani added that if a purposive interpretation of the law is adopted, then the more tenable conclusion is that the bench-fixing committee should be able to function with any available members or with just the chief justice alone.
"The argument here is that a constitutional institution, as important as the Supreme Court, cannot be allowed to be paralysed simply because one or two judges are unable or unwilling to attend the committee's meetings. This manner of interpreting the statute would temporarily paralyse a constitutional institution," he said, adding, "Surely, that could not be the law."
"Either way, there is much ambiguity created by the Act as well as the Ordinance -- both of which will go down in history as lasting tributes to the professional incompetence of the drafting team presided by [Federal Law Minister] Azam Nazeer Tarar," said Advocate Gillani.
Senior lawyer Advocate Mian Daud, who is based in Lahore, told The Friday Times that if the stance of the critics is accepted that since the senior puisne judge is not a member of the committee, then all the benches constituted by the committee would be unlawful.
"The next implication is that the Supreme Court would become completely inactive," warned Advocate Daud.
"If a situation arises that the committee members refuse to participate in its meeting, then the Chief Justice of Pakistan, using his discretionary power could issue any administrative order to keep the Supreme Court functioning," he said, adding that where the law is silent then the Constitution takes its way for the welfare of the people.
Controversy continues in top court
Amid such controversy, a five-judge bench headed by Chief Justice Qazi Faez Isa resumed Tuesday hearings on the review petitions against the top court's judgment on Article 63-A.
When the hearing commenced, the chief justice addressed the bench's constitution, revealing that Justice Akhtar was fast on his earlier stance regarding his presence on the bench.
Regarding the committee meeting without Justice Shah, CJP Isa said Justice Shah's office had been contacted for a meeting of the bench-fixing committee. However, due to Justice Shah's refusal to attend the meeting unless his pre-stated terms were met, CJP Isa said he had no option but to include Justice Naeem Akhtar Afghan on the bench, replacing Justice Munib Akhtar.
The top court also released minutes of the committee's latest meeting, wherein CJP Isa had proposed Justice Shah's name. However, Justice Shah, who had previously expressed his displeasure with recent changes to the bench-fixing committee, did not attend the meeting.
According to the minutes, Justice Shah's personal secretary, after inquiring from him, reported that the judge would not be participating in the committee meeting and would not want to be a member of the bench.
The committee, therefore, decided to include Justice Naeem Akhtar Afghan on the bench as he was available since the work of bench No. 1 concluded at 11am, and the work of no other bench would be disturbed.
During Tuesday's hearing, the federal government and the Pakistan Peoples Party (PPP) supported the Supreme Court Bar Association's (SCBA) review plea against the top court's May 2022 verdict on Article 63(A).
SCBA's President Shahzad Shaukat objected to the 2022 verdict, arguing that there was a presidential reference and petitions under Article 184(3) of the Constitution.
Chief Justice Isa questioned how judgment could be given by combining both, adding that only an opinion could be given on a presidential reference.
The President had informed the court that the top court's verdict was an attempt to rewrite the Constitution. However, the chief justice remarked that when the Constitution is clear, how can one add something?
In response to the top judge's question about whether the impugned judgement provisioned immediate disqualification of a lawmaker if he votes against party lines, the additional attorney general replied in the negative.
"No, nothing like that has been said in the judgement," the law officer said.
When asked who opposed and supported the SCBA's review plea, Pakistan Thereek-e-Insaf's (PTI) Barrister Ali Zafar said that he was against the petition, whereas the federal government and the PPP said that they supported the review request.
PPP's lawyer Farooq H. Naek argued that the Constitution has no provision against counting lawmakers' votes.
After hearing the arguments, the chief justice said the court would hear the remaining lawyers on Wednesday and adjourned the hearing.