The additional notes of four honorable judges included in the seven-member bench indicated the use of the structured exercise of jurisdiction under article 184(3) of the constitution in the February 23, 2023 order. After this development, the Honorable Chief Justice of Pakistan could have either constituted a full-court bench or directed the relevant provincial high courts to decide the matter within a specified time. However, CJP considered appropriate to reconstitute a five-member bench to carry on the proceedings despite political protest and advice by some veteran members of the legal fraternity otherwise.
A day after Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail released their detailed dissenting note, calling for revisiting the power of one-man show enjoyed by the office of the CJP, the ruling coalition introduced the Supreme Court (Practice and Procedure) Bill 2023, to curtail CJP's powers to take suo motu notice and constitute benches. The bill has been sent to the president for assent under article 75 of the constitution.
Then, Justice Aminuddin Khan recused himself from the five-member bench after a judgment authored by Justice Qazi Faez Isa and himself, which noted that the CJP does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance – under article 184(3) – should be postponed until they are legislated upon. Quickly thereafter, PM Shehbaz Sharif ordered the withdrawal of curative review petitions against Justice Isa.
There are 38 posts of superior courts' judges lying vacant. As judges themselves control and supervise the judiciary, the responsibility to sort out institutional issues of judicial appointments, capacity, accountability and performance essentially lies with the judiciary.
The newly-reconstructed four-member bench has dissolved once again after Justice Jamal Khan Mandokhail rescued himself from hearing the petition after apex court’s order halted proceedings under article 184(3). The SC rebuffs Justice Isa’s decision through a circular issued by the SC’s registrar. The circular states that Justice Isa’s decision would not be enforceable under the law since it conflicts with the five judges’ decision in the March 15 order.
Fast-rolling out of these events compels the students of law to understand the context and how the law and legal institutions operate in our country.
Now, the SC bench hearing petitions on polls stands dissolved. It raises these questions: Should or can the CJP proceed with the case while reconstructing another bench, without overruling the three-judge bench’s hard-hitting decision authored by Justice Isa that postponed all other cases under article 184(3)? Can the registrar of the SC annul decision authored by Justice Isa through a circular? Above all, what would be judicial value and moral authority of a decision made by a new bench (less than a full-court bench) in view of dissenting opinion, removal and withdrawal from the bench of a number of judges of the SC?
The nation is observing this situation with despondency. The current turn of events is an unfortunate occurrence in our judicial history.
There appears to be confusion, despair, distrust and discord among honorable judges of the SC and a sharp difference of opinion in the legal fraternity. Again, without getting into the legal merit of the approaches taken by honorable judges of the SC, these developments within the SC and the parliament, put a question mark on the institutional capacity and integrity of the law and legal institutions in Pakistan. The parliament lacks debate and independence. The SC is in shambles. There is a division in the SC regarding the interpretation of the constitution and the Supreme Court Rules 1980. There are fundamental questions as to the implementation of the constitution – i.e. the conduct of elections in KP and Punjab within 90 days of the dissolution of the provincial assemblies. In addition to the political and economic instability, the country is now facing a serious constitutional and institutional crisis.
As for the judiciary, over 380,000 cases are pending before the SC and all the five high courts of the country. How can litigants and masses repose trust when their cases are not fixed for hearing for years or fixed randomly, not decided timely, and when there is a lack of institutional discipline and capacity? There are 38 posts of superior courts' judges lying vacant. As judges themselves control and supervise the judiciary, the responsibility to sort out institutional issues of judicial appointments, capacity, accountability and performance essentially lies with the judiciary. The executive and the legislature are also responsible in this regard in terms of the provision of funds for upgradation of the judiciary and the implementation of judicial orders.
Are the senior members of the judiciary not aware that there is a lack of merit in judicial appointments and thus capacity to deliver justice? Do the regulatory bodies of lawyers not know how certain members of the bar attempt to influence courts through political offices or otherwise for favourable decisions with impunity? Do judges not know how some members have been compromising the independence of the judiciary without affective accountability? How long can our governments and judicial policymakers and bar representatives ignore deterioration in the legal profession?
Here I quote the Honorable Chief Justice of Pakistan, Umar Ata Bandial. He stated in the 9th International Judicial Conference at Islamabad that "with the right people and right energy Pakistan can soon become a nation endowed with prosperity and progress." It may be asked: Does our judiciary lack the right people with the right energy? One may also ask: Can our justice system be reformed? To do this, all stakeholders (legal, judicial, and political) need to imagine, create, and sustain a strong justice system that Pakistan deserves.
Finally, it is hoped that the honorable judges of the SC can find a way out of the present crisis internally with their collective wisdom. All eyes are on the SC. Notwithstanding difference of opinion, the civil society and the legal fraternity should support the SC – our sacred institution, in the public interest.