While the validity of the ECP order is another matter in itself, the country was left in a state of confusion when the shocking bickering that the Honorable Justices of the Bench found themselves engaging in became public. These revelations only confirmed the fears of the legal community that there was a chasm forming between the Honorable Judges of the Supreme Court, but also indicated that the abuse of the discretionary and unilateral powers by the Chief Justices of Pakistan since the days of Iftikhar Chaudhary had finally cumulated into this judicial crisis. What led to the shocking, repeated reconstitution of the Bench was the assertion that the 1st March 2023 Order of the Supreme Court calling for elections in 90 days was not a 3-2 majority decision for the same, but a 4-3 order dismissing the suo motu proceedings as well as the relevant constitutional petitions, which was penned by the Honorable Justice Mandokhail and Honorable Justice Mansoor Ali Shah.
This confusion was noticed and highlighted by many of us within the legal fraternity and is rooted in the 23rd February Order passed by Supreme Court within the same proceedings. Honorable Justice Yahya Afridi and Honorable Justice Athar Minallah dismissed the petitions, with both stating that both the suo motu and the Constitutional Petitions were premature as the case was pending in the Lahore High Court, and this constituted an abuse of Article 184(3) and the discretionary powers of the Supreme Court with the former stating that the hierarchy of the Courts should not be sacrificed on the altar of eagerness, and the latter stating that proper Constitutional questions needed to be framed within said suo motu; these questions were not framed and were being ignored.
This is how the executive functions, not the judiciary.
Resultantly, the bench was reconstituted and a five-member bench passed the 1st March Order allowing the petitions with a 3-2 verdict, yet when the order was published, the two dissenting notes spoke of dismissing the petitions in conjunction with the dismissal orders of 23rd March, causing it to be argued that the Order was 4-3 for the dismissal of Petitions and the Chief Justice had declared it a majority decision on a whim.
The same question found itself on the Election Delay proceedings when Honorable Justice Mandokhail and Justice Akhtar entered into an argument on whether the 1st March Order was a 3-2 Acceptance or a 4-3 Dismissal, with the former highlighting whether the dismissal orders of Justice Yahya and Justice Athar had no Value at all and the latter stating that a minority opinion declaring itself a majority does not change its minority status. This resulted in Justice Mandokhail recusing himself and the judicial crisis deepening even more.
On the forefront, this entire crisis is largely due to the negligence and disappointing attitude of the Honorable Chief Justice, as it was repeatedly stated that a full court was necessary for the solving of this issue and the constitutional crisis required constitutional questions to be answered, but regrettably the Chief Justice remained adamant that a full bench should not be made and even to this day remains convinced so, despite the fact that there is an ongoing judicial crisis and the country is in desperate need for constitutional stability.
It is also important to highlight that while Justice Akhtar had a point regarding benches being reconstituted, it is also important to highlight that when the bench has been formed, the Chief Justice is not empowered to administratively or judicially dissolve the bench and reconstitute it to his liking. This was an arbitrary use of discretionary power that neither has justification in law, nor in precedent. The action caused grave concern to be directed at the newly formed bench which passed the 1st March order. This was further exacerbated when the Chief Justice and the remainder ‘majority’ judgment judges wrote an order that neither took into consideration the dismissal orders of March 23rd, nor did they acknowledge whether this judgment was a 3-2 judgment in their short order, fueling the current crisis.
It also does not bode well that one of the most important constitutional cases was not approved for reporting, fearing its value as a settled precedent. These actions cast a shadow on the recent working of the Supreme Court. Of course this situation was further worsened when the Registrar, in an arbitrary manner passed a notification, absent the settled working of the Supreme Court, declaring the 2-1 judgment passed by Justice Qazi Isa to be disregarded. Never has such a thing happened in the history of the judiciary and it was a clear slight to some of the most senior judges as the judicial way would have been for the bench to consider the questions of the said judgment and put them aside as a greater bench order. Yet the display, in contrast to expectations, was quite appalling to witness, after all if one judgment could be set aside upon a circular issued by the registrar, then the same could be done for future judgments. Any relief taken could be thrown aside by the Chief Justice declaring in the circular that he disagrees.
This is how the executive functions, not the judiciary. There is no doubt that the Supreme Court finds itself in a deep crisis and it is quite unfortunate to state that the crisis has been made worse due to its own actions, which have contributed towards the wider constitutional crisis plaguing the Country.
There is no doubt that there is an immediate need for the Supreme Court to constitute a full bench and adjudicate upon the pending constitutional questions that need to be interpreted so that the current crisis plaguing the country can be mitigated and the judicial chasm that we are witnessing can be bridged. It will be a devastating loss and a dark legacy for the incumbent Chief Justice if the judicial crisis is not resolved and the genuine concerns of senior judges and the legal fraternity are not answered.