A bench-mark

Forming benches in the Supreme Court by the Chief Justice of Pakistan is becoming an issue

Tahmasp R Razvi August 02, 2022
The writer is an advocate of the high courts of Pakistan


Once again, the war between political parties ended up in the Supreme Court and once again, we saw politicians crying foul at each other. Some things are unfortunately inevitable in Pakistan such as corrupt politicians, Karachi’s perennially clogged drainage system and an extension of the Chief of Army Staff.

In recent times another issue has repeatedly been raised by lawyers and political parties meriting a serious discussion. The issue is of forming benches in the Supreme Court by the Chief Justice of Pakistan (CJP). The prerogative to constitute benches lay with the chief justice, this is well settled. Then why are such objections being raised?

Earlier this year, the Islamabad High Court Bar Association filed a petition wherein it complained that in anticipation of a protest march into Islamabad by the workers of a political party, the Federal Government had blocked highways and roads within the Capital to prevent entry and movement of the protestors. Resultantly, the general public was prevented from conducting their daily lives contrary to the guarantees under Article 9 and Article 15 of the Constitution. To hear this matter the CJP formed a larger bench consisting of judges who were 4th, 7th, 8th, and 10th respectively in the seniority list of the Supreme Court.

The composition of the larger bench that was hearing a presidential reference on Article 63(A) of the Constitution consisted of judges who were 4th, 8th, and 13th respectively in the seniority list of the Supreme Court. Earlier the case challenging the ruling passed on 03.04.2022 by the Deputy Speaker of the National Assembly on the no-confidence motion was also heard by the same larger bench.

Similarly in the recent Chaudhry Parvez Elahi case the bench comprised of judges who were respectively 4th and 7th in the seniority list. The exclusion of Justice Qazi Faez Isa and Justice Sardar Tariq Masood, who are the senior-most judges after the CJP, is apparent in all these landmark cases, which involved the interpretation of the Constitution.

The judgments passed by the Supreme Court in the above cases were widely praised by the lawyers, public, and media. However, it did leave a bad aftertaste for some. The discretion exercised by the CJP in constituting the benches made the aggrieved parties and its followers feel that this discretion was deliberately being exercised to reach a certain predetermined result. Such action gives rise to unnecessary and avoidable questions from lawyers, political parties, and the public.

The result would have been the same no matter who heard the case. There was no need for ‘bench fixing’. But by allowing his discretion and constituting a bench by eliminating senior judges, the CJP had to face severe criticism. Something that could have been easily avoided by the CJP.

Questioning the methods of the CJP gives or creates doubts in the mind of the public who come to court to seek refuge from the oppressor. It is the utmost duty of the CJP to protect and keep the reputation and honour of the court intact.

The formation of benches is the prerogative of the CJP, but such a right or privilege must be structured. Adopting the practice of constituting benches consisting of senior judges when cases involve important constitutional questions must be made a rule of the courts.

I find it equally important to mention here that not participating or withdrawing from a case simply on the ground that the court did not constitute a larger bench at the request of a party is unacceptable and amounts to politically blackmailing the apex court. All political parties must respect the courts. Instead as members of the legislature, they should introduce laws or amend the existing laws whereby the formation of benches becomes more transparent. Unfortunately, our legislators are busy fighting each other and have forgotten their foremost duty.

Published in The Express Tribune, August 2nd, 2022.

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