Days after a presidential ordinance amended the Practice and Procedure Act 2023 to grant the Supreme Court's chief justice greater powers to select the committee that fixes benches and the speed with which the top judge reconstituted the committee instead of protesting the executive overreach, a senior judge has objected to the amendments, and conveyed his decision not to participate in the bench fixing committee until a full court bench determines the constitutional validity of the Ordinance or the earlier composition of the committee is restored.
It is pertinent to mention here that the last meeting of the committee, which was scheduled to be held on Thursday was postponed and a new schedule was issued soon after the Ordinance was passed on Friday morning listing the new meeting for Monday afternoon. The new meeting, however, listed it without the second senior judge, Justice Muneeb Akhtar, and instead picked the fourth senior judge, Justice Ameenuddin Khan.
In a letter sent on Monday by Justice Mansoor Ali Shah to the committee's secretary, the Supreme Court Registrar, he noted, "Independence, transparency and collegiality required the Chief Justice to raise an immediate alarm and concern on the promulgation of the amending Ordinance in the light of the court's celebrated pronouncement in Raja Amer, and to convene a full court meeting of all judges of this Court for deliberation on the matter, rather than hurriedly acquiescing to it and quietly reconstituting the existing Committee without any lawful justification and reasons."
Earlier, Justice Shah had noted that a full court bench, while upholding the constitutional validity of the Practice and Procedure Act in Raja Amer had held: (i) that Article 191 of the Constitution vests the initial and primary power to make rules for regulating its practice and procedure in the Supreme Court, whereas the power vested in the Legislature to enact a law on this subject is like a check on the rule-making power of the Supreme Court to be seldom exercised, only when it is necessary to do so in the public interest, and (ii) that the act has facilitated access to justice, instilled transparency, made the realisation of fundamental rights more effective, and the Supreme Court more independent.
"With foresight and wisdom, this court closed the door to any future intrusion or encroachment by the Parliament, under the rubric of the [Practice and Procedure] Act, upon the independence of this court, by holding that if any such amendment is made, or attempted to be made, in order to compromise or impair the independence of the judiciary, or to disrupt or disturb the fair and free stream of administration of justice, or cause any hindrance in the access to justice, this court being the custodian of the Constitution, would be there to deal with the same."
He continued that after the Raja Amer case, there arise serious questions as to the constitutional validity of the amendments made by last week's Ordinance, and the procedure of the constitution of the bench fixing committee as well as in "vesting unfettered and arbitrary discretion in the Chief Justice to determine the composition of the committee."
He noted that the Ordinance did not explain the urgency that necessitated its promulgation, instead of a proper amending enactment through the act of Parliament, not to mention its timing in the midst of an ongoing constitutional crisis.
Justice Shah noted that the Ordinance does not provide for the necessary reconstitution of the existing committee comprising Chief Justice Qazi Faez Isa and the two senior-most judges, and the earlier committee could have continued even after the amending Ordinance.
"However, within hours of the promulgation of the amending Ordinance, it was notified that the committee had been reconstituted. No reasons were given as to why the second senior-most judge, Justice Muneeb Akhtar, was removed from the composition of the committee," he said, noting that since Justice Akhtar had been serving in the committee since March 11, 2024, and had attended all the meetings and was available for Monday's meeting as well.
Furthermore, Justice Shah expressed that no reasons were given for ignoring the next senior-most judge, who was ignored, and instead, the fourth senior-most judge was nominated as a member of the committee.
"Such unfortunate cherry picking and undemocratic display of one-man show are precisely what the Act tried to discourage and replace-a stance that was upheld by the full court bench of this court in Raja Amer."
He reminded that the Supreme Court in the Raja Amer case had held: "In the realm of public institutions, particularly within the hallowed halls of the Supreme Court, the principle of collegial working stands as a cornerstone for ensuring justice, fairness, and the larger good of the people who seek its intervention. The concentration of ultimate administrative powers in the hands of a single individual, such as the Chief Justice, runs counter to the ideals of democratic governance and judicial fairness.... Embracing collegiality in administrative decisions ensures that the court's functioning transcends the outdated notion of a 'one-man show', reflecting a more inclusive, transparent, and equitable judiciary that truly serves the public interest."
Justice Shah stated that the ability of an institution to remain open to dissenting voices, rather than silencing them, can be described as fostering a culture of inclusivity, open dialogue and intellectual pluralism. It reflects a commitment to freedom of expression, encouraging diverse perspectives and constructive debate rather than suppressing disagreement.
"The hurriedly reconstituted committee, within hours of the promulgation of the amending Ordinance by the Chief Justice, without any lawful justification and without consultation with his colleague judges, seems to offend these principles and the verdict of the full court bench of this court in Raja Amer, a decision authored by the Chief Justice himself."
He recalled how Chief Justice Qazi Faez Isa once firmly believed in the collegiality and transparency which had been introduced by the Practice and Procedure Act and that as a senior puisne judge, he had recused himself from sitting in any bench and opted for chamber work for several months, awaiting the decision of the then pending case of Raja Amer involving determination of the constitutionality of the act.
"The importance of the Act to the Chief Justice got further underscored as this was the first and the only case taken up by the court for hearing upon his assuming office of the Chief Justice," Justice Shah stated.
"I am afraid, any proceedings taken or decisions made by the reconstituted committee will go against the full court bench decision of this court in Raja Amer and will undermine the integrity of the highest institution of justice in the country as well as the public confidence in the decisions made by the benches constituted by it."
Justice Shah asserted: "Therefore, I am of the firm view that until the constitutional validity of the amendments made by the amending Ordinance is determined by the full court bench of this court, or the judges of this court resolve to act upon the amendments in a full court meeting on the administrative side, or the earlier committee is restored by the Chief Justice by nominating and including the second senior-most judge of this court, I, with respect, regret that I cannot participate in the meetings of the committee."