But the Constitution and the law cannot be subject to political polarisation, even as these social contracts are delineated by the will of the people. Interior minister Rana Sanaullah has recently said that the government is considering filing references in the Supreme Judicial Council against three judges, including the Chief Justice of Pakistan, Justice Umar Ata Bandial. Will Pakistan's apex court find a way out of this existential crisis that the country faces, or could Supreme Court judges 'succumb' to public pressure, accusations and online ridicule? The Friday Times (TFT) spoke to Ashtar Ausaf Ali, a senior advocate of the Supreme Court of Pakistan who twice served as the Attorney General for Pakistan (2016-2018, and 2022-2023).
TFT: It is the position of former prime minister Nawaz Sharif that a full court bench should be formed; meanwhile, the judgment of Justice Qazi Faez Isa – directing that the exercise of suo motu powers be deferred – has been rejected by the Chief Justice. With this context, what should the number of judges of the bench be in the election case?
Ashtar Ausaf Ali: Per the definition of ‘Supreme Court’ provided in the Constitution, there is no concept of judges sitting in separate benches; the Court has to sit as a whole, headed by the Chief Justice, while the remaining judges – whether hearing petitions of Article 184(3) or appeals – sit with him, excepting those cases where the Chief Justice acts as an arbitrator. Since the powers of the Chief Justice and the powers of the Court are spelled out in the Constitution with such clarity, they should not be confused further. The Chief Justice of Pakistan is not separate from the Court. By way of comparison, when the High Court was established, its powers were mentioned immediately after three articles: the composition of the benches and where and when these can be formed are all provided for with great coherence. There is no such formal expression for cases relating to the Supreme Court. As for the rules made under it assigning certain business to various benches, this was likely against the spirit of the Constitution and its orders. In my personal opinion, the court does not have the authority to proceed on the basis of suo motu; the reason being the same institution acts as complainant, investigator, and prosecutor, which conflicts with the fundamental rights of the Constitution. Seeing as adequate rules regarding hearing of 184(3) petitions have not been delineated yet, the only way to preclude any objections is for the entire court to sit as one and hear the case.
TFT: Can judges who have given their opinion that such cases should not be heard until the rules are amended, sit in the full bench, considering they have already given a decision against those proceedings?
Ashtar Ausaf Ali: The power to form a bench rests with the Chief Justice. If it is so decided that the full court bench will sit to hear the petition, it shall do so in accordance with the spirit of the Constitution. This is because the Supreme Court comprises the Chief Justice as well as all the judges sitting with him. This has the added advantage of infusing our declarations of law with collective wisdom.
TFT: The government says that it does not accept the bench formed by the CJ. Can any government refuse to accept this decision?
Ashtar Ausaf Ali: It is the domain of the apex court to make rules in this regard. In keeping with Article 191 of the Constitution, however, Parliament has the power to make laws. At this time, a lack of confidence is visible from within the court, which is an unfortunate precedent. The Constitution and the law state that we can appeal against any decision, but we cannot say that we do not accept the decision. Second, justice must not only be done; it must be seen to be done. When the bench was formed regarding the elections matter, it consisted of 9 judges. When two of its members left the bench, two new judges should have been added to replace them.
TFT: Do you think there should be a right of review, and that rules should be made for that? Does it fall within the parliament’s ambit to make rules for the courts?
Ashtar Ausaf Ali: The Supreme Court must revisit its rules: it cannot be overlooked that voices calling for reform are coming from within the Court itself. In my opinion, there should be a full court bench, and if a full court bench is not formed for any reason, then it should consist of at least nine judges.
TFT: Are differences visible within the judiciary internally, or are they being created or manufactured from outside. Will such 'differences' or 'diversity of opinion' strengthen or weaken the SC as an institution?
Ashtar Ausaf Ali: In my opinion, the judiciary is looking very weak at the moment: the general perception is that the Court is divided, and there are matters of personal animus arising from within.
TFT: Can a three-judge bench overrule the decision of a five-judge bench with a dissenting opinion?
Ashtar Ausaf Ali: The decision of the five-judge bench can only be overturned by a judicial order. In this judicial order, it has been asked to create rules. It is not that the decision of the five-member bench was wrong; it was held that the rules need to be revisited. It should not be considered that one bench superseded the other bench. But it is surprising that the decision of a bench was made by the registrar.
TFT: If the lawyers of the Election Commission of Pakistan object to the judge, should the judge distance himself from the bench constitutionally?
Ashtar Ausaf Ali: This is purely a moral imperative but after Article 10A of the Constitution, the concept of fair trial has been enshrined with clarity. If a judge is objected to, he can take a moral stand and ask another judge to listen to the case in his place, but there is no legal restriction on a judge whose continued presence is objected to, to distance himself from hearing the case.