In the last month, the Supreme Court of Pakistan has faced a severe judicial crisis regarding the discretionary power of the Chief Justice of bench constitution, which has not only created instability within the constitutional structure, but also contributed to the growing chasm within the judiciary, deepening the constitutional crisis faced by the Country.
“The term 'master of roster' used in Para 22 of the Order cannot be understood to mean that the HCJ has unfettered discretion regarding constitution of Benches. In fact, the discretion vested in the office of the HCJ for constitution of Benches is to be exercised in a structured manner according to the SCR.” -- Justice Manzoor Ahmed Malik, in PLD 2021 SC 639
The discretionary power of the Chief Justice of the Supreme Court regarding the constitution of benches is rooted in Order XI of the Supreme Court Rules 1980, which provides for the consigning of cases and for the roster to be approved and supervised by the Chief Justice. The administrative duty was allotted to the office of the Chief Justice so that the case in question could be heard by the Judge that will give it proper legal care, since every judge has their own unique style of jurisprudence, formed as a consequence of their context and experience. Unfortunately, this cardinal duty has been utilized to form benches that have excluded some of the most experienced dustices in the country, and this form of bench exclusion isn’t a recent phenomenon. Pakistan has repeatedly witnessed the constitution and reconstitution of benches for politically expedient orders. It morphed to such a length that Justice Abdul Kadir Sheikh, a judge of impeccable stature had to pass judicial remarks stating;
“I cannot conceive of a situation where one Judge of a Division Bench constituted by my Lord the Chief Justice to hear a case can direct the other Judge of the Bench not to hear the case on the ground that he has a bias or an interest in the case, or for that matter on any other ground whatsoever. If this bar were not to exist, then it would amount to permitting the Judges to destroy or take away the judicial function or power of each other, which position is neither conceived nor permitted by the Constitution.”
Most recently in the Human Rights Case No.14959-K, it was held that the constitution of benches was an administrative prerogative provided to the Chief Justice and once it was constituted, the matter regarding the bench was no longer vested within the administrative duties of the Chief Justice, but to the judicial bench and any reconstitution of the bench while hearing the case would impinge on the constitutional value of independence of the judiciary and would be tantamount to stifling disagreement or to dampen alternative view.
A similar viewpoint was taken in 2019 PLC C.S 982 ironically by the then Justice Umar Bandial, who is the current presiding Chief Justice, and he agreed that the office of the Chief Justice regarding the constitution of benches was an administrative duty and whenever the bench passes a judicial order for constitution of a larger bench, the said Chief Justice is to pass the administrative order in compliance to the judicial order without question and the said judgment disagreed with the then Chief Justice Saqib Nisar’s refusal to constitute a larger bench in the case of Shafqat vs State.
There can be no doubt that in recent events, the issue has reached a boiling point and requires immediate adjudication upon the matter, especially since it has been repeatedly highlighted that for the past few years, the Supreme Court has focused on creating benches favorable to certain political interests rather than benches based on merit, which has produced questionable judgments leading to the emergence of the current constitutional crisis.
In the backdrop of history, it is clear that Order XI has been misused for vested interests and is in contrast to the democratic principles that govern the country. This is especially true when one is left to wonder as to what remedy is available if the Honorable Chief Justice utilizes this discretionary administrative power in an arbitrary manner, absent good faith. When the executive does the same, then the aggrieved has recourse to the Superior Courts, but in this case, there is no recourse available and in light of such, we have to ask whether it is truly wise to provide one person with such absolute and discretionary power to constitute benches, especially in relation to constitutional cases that impact the state and the political settlements that govern the country for decades to come. This becomes even more frightening that this absolute discretion can very easily fall to an abuse of process, which can lead to not only the infringement of the individual fundamental right to a fair trial but also create judicial chasms that would be difficult to bridge. We have seen this in our judicial history, from the birth of the term judicial murder for the sentence given out to Prime Minister Zulfiqar Ali Bhutto, to judicial misgivings by the Chief Justice Sajjad Ali Shah, leading to the 1997 judicial crisis and to the present, where benches are repeatedly breaking and being reconstituted.
Ironically, this sentiment is not just being echoed in Pakistan but in our neighborhood as well. The Chief Justice of India Dipak Misra faced severe criticism from four Supreme Court justices when he declared the Office of the Chief Justice as the “Master of Roster” and held that it was the sole prerogative of the Chief Justice to decide which justice adjudges what case, and he faced severe criticism as jurists highlighted that this would lead to cases being allotted based on preferences or the will of the Chief Justice and not based on seniority or experience, and wondered whether the fate of constitutional cases rested upon retirement dates.
Some even highlighted that sensitive cases or cases not to the preference of the Office of the Chief Justice may not see urgent hearings, or may not even be placed. Even in recent times, the Indian Supreme Court was found to be at odds when Justice M.R Shah and Justice C.T Ravikumar passed an order to the registry to consign the case to Justices B.R Gavai and Vikram Nath, and the latter was not pleased and declared that it was the sole prerogative of the Chief Justice of India to consign cases, even though it is a normal practice of the Indian Supreme Court that the matter follows a judge who is part of the bench which has passed an effective order.
The judicial crisis in Nepal is another warning to Pakistan as lawyers and judges, notably 18 of the 19 Supreme Court judges, boycotted the proceedings in relation to the arbitrary usage of powers by the Nepal Chief Justice Cholendra Shumshir Rana, who is rumoured to have links to the executive. This has resulted in a massive crisis of legitimacy for the judiciary, with the Chief Justice surrendering his discretionary power after many protests and a solution of lots being proposed for case allotment.
There is no doubt that this arbitrary power needs to be restricted, and the rules need to be defined in such a manner that the power’s usage requires plausible reasoning. A solution needs to be discovered with haste. In the eyes of some, Order XI of the Supreme Court Rules is in contravention of the Constitutional Fundamental Rules and as such, stands ultra vires since a subsidiary law, the Supreme Court Rules 1980 cannot stand in contravention to the parent law, the 1973 Constitution of the Islamic Republic of Pakistan. Proponents of this view make a strong argument, considering the judicial history of Pakistan, but there is no doubt that the Supreme Court needs to properly define Order XI in such a manner that it no longer functions as an arbitrary discretion of a single individual.
For this purpose, if the legislative has to legislate, then it must legislate. Otherwise, we may witness a judicial crisis of the kind that has gripped Nepal. We do not have the constitutional stability nor the institutional strength at this moment in time to survive such a crisis. In this matter, we have to be proactive.
“The term 'master of roster' used in Para 22 of the Order cannot be understood to mean that the HCJ has unfettered discretion regarding constitution of Benches. In fact, the discretion vested in the office of the HCJ for constitution of Benches is to be exercised in a structured manner according to the SCR.” -- Justice Manzoor Ahmed Malik, in PLD 2021 SC 639
The discretionary power of the Chief Justice of the Supreme Court regarding the constitution of benches is rooted in Order XI of the Supreme Court Rules 1980, which provides for the consigning of cases and for the roster to be approved and supervised by the Chief Justice. The administrative duty was allotted to the office of the Chief Justice so that the case in question could be heard by the Judge that will give it proper legal care, since every judge has their own unique style of jurisprudence, formed as a consequence of their context and experience. Unfortunately, this cardinal duty has been utilized to form benches that have excluded some of the most experienced dustices in the country, and this form of bench exclusion isn’t a recent phenomenon. Pakistan has repeatedly witnessed the constitution and reconstitution of benches for politically expedient orders. It morphed to such a length that Justice Abdul Kadir Sheikh, a judge of impeccable stature had to pass judicial remarks stating;
“I cannot conceive of a situation where one Judge of a Division Bench constituted by my Lord the Chief Justice to hear a case can direct the other Judge of the Bench not to hear the case on the ground that he has a bias or an interest in the case, or for that matter on any other ground whatsoever. If this bar were not to exist, then it would amount to permitting the Judges to destroy or take away the judicial function or power of each other, which position is neither conceived nor permitted by the Constitution.”
There can be no doubt that in recent events, the issue has reached a boiling point and requires immediate adjudication upon the matter, especially since it has been repeatedly highlighted that for the past few years, the Supreme Court has focused on creating benches favorable to certain political interests rather than benches based on merit, which has produced questionable judgments leading to the emergence of the current constitutional crisis.
Most recently in the Human Rights Case No.14959-K, it was held that the constitution of benches was an administrative prerogative provided to the Chief Justice and once it was constituted, the matter regarding the bench was no longer vested within the administrative duties of the Chief Justice, but to the judicial bench and any reconstitution of the bench while hearing the case would impinge on the constitutional value of independence of the judiciary and would be tantamount to stifling disagreement or to dampen alternative view.
A similar viewpoint was taken in 2019 PLC C.S 982 ironically by the then Justice Umar Bandial, who is the current presiding Chief Justice, and he agreed that the office of the Chief Justice regarding the constitution of benches was an administrative duty and whenever the bench passes a judicial order for constitution of a larger bench, the said Chief Justice is to pass the administrative order in compliance to the judicial order without question and the said judgment disagreed with the then Chief Justice Saqib Nisar’s refusal to constitute a larger bench in the case of Shafqat vs State.
There can be no doubt that in recent events, the issue has reached a boiling point and requires immediate adjudication upon the matter, especially since it has been repeatedly highlighted that for the past few years, the Supreme Court has focused on creating benches favorable to certain political interests rather than benches based on merit, which has produced questionable judgments leading to the emergence of the current constitutional crisis.
There is no doubt that this arbitrary power needs to be restricted, and the rules need to be defined in such a manner that the power’s usage requires plausible reasoning.
In the backdrop of history, it is clear that Order XI has been misused for vested interests and is in contrast to the democratic principles that govern the country. This is especially true when one is left to wonder as to what remedy is available if the Honorable Chief Justice utilizes this discretionary administrative power in an arbitrary manner, absent good faith. When the executive does the same, then the aggrieved has recourse to the Superior Courts, but in this case, there is no recourse available and in light of such, we have to ask whether it is truly wise to provide one person with such absolute and discretionary power to constitute benches, especially in relation to constitutional cases that impact the state and the political settlements that govern the country for decades to come. This becomes even more frightening that this absolute discretion can very easily fall to an abuse of process, which can lead to not only the infringement of the individual fundamental right to a fair trial but also create judicial chasms that would be difficult to bridge. We have seen this in our judicial history, from the birth of the term judicial murder for the sentence given out to Prime Minister Zulfiqar Ali Bhutto, to judicial misgivings by the Chief Justice Sajjad Ali Shah, leading to the 1997 judicial crisis and to the present, where benches are repeatedly breaking and being reconstituted.
Ironically, this sentiment is not just being echoed in Pakistan but in our neighborhood as well. The Chief Justice of India Dipak Misra faced severe criticism from four Supreme Court justices when he declared the Office of the Chief Justice as the “Master of Roster” and held that it was the sole prerogative of the Chief Justice to decide which justice adjudges what case, and he faced severe criticism as jurists highlighted that this would lead to cases being allotted based on preferences or the will of the Chief Justice and not based on seniority or experience, and wondered whether the fate of constitutional cases rested upon retirement dates.
Some even highlighted that sensitive cases or cases not to the preference of the Office of the Chief Justice may not see urgent hearings, or may not even be placed. Even in recent times, the Indian Supreme Court was found to be at odds when Justice M.R Shah and Justice C.T Ravikumar passed an order to the registry to consign the case to Justices B.R Gavai and Vikram Nath, and the latter was not pleased and declared that it was the sole prerogative of the Chief Justice of India to consign cases, even though it is a normal practice of the Indian Supreme Court that the matter follows a judge who is part of the bench which has passed an effective order.
The judicial crisis in Nepal is another warning to Pakistan as lawyers and judges, notably 18 of the 19 Supreme Court judges, boycotted the proceedings in relation to the arbitrary usage of powers by the Nepal Chief Justice Cholendra Shumshir Rana, who is rumoured to have links to the executive. This has resulted in a massive crisis of legitimacy for the judiciary, with the Chief Justice surrendering his discretionary power after many protests and a solution of lots being proposed for case allotment.
There is no doubt that this arbitrary power needs to be restricted, and the rules need to be defined in such a manner that the power’s usage requires plausible reasoning. A solution needs to be discovered with haste. In the eyes of some, Order XI of the Supreme Court Rules is in contravention of the Constitutional Fundamental Rules and as such, stands ultra vires since a subsidiary law, the Supreme Court Rules 1980 cannot stand in contravention to the parent law, the 1973 Constitution of the Islamic Republic of Pakistan. Proponents of this view make a strong argument, considering the judicial history of Pakistan, but there is no doubt that the Supreme Court needs to properly define Order XI in such a manner that it no longer functions as an arbitrary discretion of a single individual.
For this purpose, if the legislative has to legislate, then it must legislate. Otherwise, we may witness a judicial crisis of the kind that has gripped Nepal. We do not have the constitutional stability nor the institutional strength at this moment in time to survive such a crisis. In this matter, we have to be proactive.