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The bench maintained that power of doing a “one-man show” is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.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