Split emerges in Supreme Court


CJP’s suo motu was dismissed by 4-3 majority: Justice Shah,Justice Mandokhail n Two SC judges call for ‘a collegial system’ to prevent abuse of power, mistakes n 27-page verdict says one-man policies not only anachronistic but also incompatible to democratic norms n Once constituted, a bench can’t be reconstituted by Chief Justice.

ISLAMABAD    -    A two-member bench of the Su­preme Court of Pakistan Monday em­phasised on regulating the exercise of court’s jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of Benches to hear such cases; the con­stitution of Regular Benches to hear all the other cases instituted in this Court; and the constitution of Special Benches.

It maintained that this court can­not be dependent on the solitary decision of one man, the Chief Jus­tice, but must be regulated through a rule-based system approved by all Judges of the Court under Article 191 of the Constitution, in regulating the exercise of its jurisdiction under Ar­ticle 184(3).

It was stated in the joint judge­ment of Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail who also held that the judgement of the Single Bench of the Lahore High Court would remain binding on the ECP and the Governor of Punjab.

The bench maintained that pow­er of doing a “one-man show” is not only anachronistic, outdated and ob­solete but also is antithetical to good governance and incompatible to modern democratic norms.

“One-man show leads to the con­centration of power in the hands of one individual, making the system more susceptible to the abuse of power,” it added. 

It further said, “In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exer­cise of power and promote the transparency and accountabil­ity. When one person has too much power, there is a risk that the institution may become au­tocratic and insulated, result­ing in one-man policies being pursued, which may have a ten­dency of going against the rights and interests of the people.”

The two judge maintained that the principle of provincial autonomy requires that when a matter which relates only to a Province, and not to the Federa­tion or to more than one Prov­inces, the High Court of that Province should ordinarily be allowed to exercise its consti­tutional jurisdiction to decide upon that matter, and this Court should not normally interfere with and exercise its jurisdic­tion in such a matter under Ar­ticle 184(3) of the Constitution, which jurisdiction is primarily federal in character.

In a 27-page joint judgement issued on Monday stated that the suo motu case regarding the Punjab and KP elections date announcement was dismissed by a majority of four judges out of seven. In the light of the above principles enunciated in Manzoor Elahi and explained in Benazir Bhutto, when we exam­ine the facts and circumstances of the present case, we find that the writ petitions filed in the La­hore High Court by PTI and oth­ers cannot be said to have been filed to “stultify” the exercise of original jurisdiction by this Court under Article 184(3) nor is there any inordinate delay in the proceedings being conduct­ed in that High Court, which could have justified the exercise of extraordinary jurisdiction by this Court under Article 184(3). “The delay, if any, has in fact been caused by the present pro­ceedings and, as observed by Justice Anwarul Haq in Manzo­or Elahi that the “High Court…would have proceeded to exam­ine the allegations…, if the mat­ter had not been brought to this Court”, we find that the Division Bench of the Lahore High Court would have decided the ICAs pending before it and the Pesha­war High Court would have de­cided the writ petition pending before it if the present proceed­ings had not been taken up by this Court, said the bench.

According to the judgement, in view of the principles settled in Manzoor Ilahi and Benzair Bhutto, the present suo motu proceedings and the connect­ed constitution petitions do not constitute a fit case to exercise the extraordinary original juris­diction of this Court under Arti­cle 184(3) of the Constitution.

The judgment said that a sev­en-member bench of the apex court has categorically and firmly held in Shabbar Raza that a judgment or an order of this Court “can never be challenged by virtue of filing indepen­dent proceedings under Arti­cle 184(3) of the Constitution”; such course is “absolutely im­permissible”

It continued that this Court has been ushered into a “polit­ical thicket”, which commenced last year with the dissolution of the National Assembly of Paki­stan32 and reached the disso­lution of the Provincial Assem­blies of two Provinces this year after passing through the dis­putes over the matters of count­ing of votes of defected mem­bers of political parties33 and election to the office of the Chief Minister of a Province,34 and that too, in the exercise of its original jurisdiction under Ar­ticle 184(3) of the Constitution. 

The verdict stated that Where the political parties and the peo­ple subscribing to their views are sharply divided, and their difference of opinion has created a charged political atmosphere in the country, the involvement and interference of this Court in its discretionary and extraordi­nary jurisdiction under Article 184(3) of the Constitution into a “political thicket”, would be in­appropriate and would inevita­bly invite untoward criticism of a large section of the people. ‘We must not forget that democra­cy is never bereft of divide.” The joint judgment of Justice Man­soor Ali Shah and Justice Jamal Khan Mandokhail said that their verdict concurring with the de­cision of other two SC judges in dismissing the suo motu and the petitions on the Punjab and Khyber Pakhtunkhwa elections is the order of Supreme Court with a majority of 4 to 3.

“We are of the considered view that our decision concur­ring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dis­missing the present suo motu proceedings and the connected constitution petitions is the Or­der of the Court with a majori­ty of 4 to 3, binding upon all the concerned,” said the judgment.

It stated that the answer lies in understanding the adminis­trative powers enjoyed by the Hon’ble Chief Justice in recon­stituting a Bench, when the Bench once constituted and as­signed a case has commenced hearing of a case. This court has held in H.R.C. No.14959-K of 2018,37 that “once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding con­stitution of the bench goes out­side the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench.

The bench further stated that once a bench has been consti­tuted, cause list issued and the bench is assembled for hear­ing cases, the Chief Justice can­not reconstitute the bench. They explained that the bench may also be reconstituted if it is against the Rules and re­quires a three-member bench instead of two. In such eventu­alities the bench passes an or­der to place the matter before the Chief Justice to nominate a new bench. “A bench, once it is constituted and is seized of a matter on the judicial side, cannot be reconstituted by the Chief Justice in exercise of his administrative powers, unless a member(s) of the bench re­cuses,” said the verdict.

The bench maintained that af­ter having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a Judge in the lat­er proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the Bench. It added that the reconstitution of the Bench was simply an ad­ministrative act to facilitate the further hearing of the case by the remaining five members of the Bench and could not nullify or brush aside the judicial deci­sions given by the two Hon’ble Judges in this case, which have to be counted when the matter is finally concluded.

ePaper - Nawaiwaqt