‘One-man show’: CJ’s discretionary powers in spotlight

ISLAMABAD:

Differences and mistrust among judges of the top court, especially the continuous questioning of the discretionary power exercised by the chief justice to form benches in the sensitive and politically high-profile cases, have started to erode its moral authority -- the very foundation on which it stands.

The Express Tribune has learnt on good authority that the federal government would request a five-judge larger bench to refer the matter to the high court for adjudication after the issuance of the two judges’ judicial order, wherein they held that the suo motu case regarding the announcement of the date of holding the Punjab Assembly election is dismissed by the bench 4:3.

However, Chief Justice of Pakistan Umar Ata Bandial has already made it clear that the apex court is adjudicating a new legal question as to whether the Election Commission of Pakistan (ECP) could annul the date of elections given by the president.

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed says that back in 2017, the All Pakistan Bar Representative Conference in Karachi resolved that the chief justice’s discretionary power to initiate suo motu, form benches and fix cases needed to be structured and regulated.

“By now, at least half a dozen top court judges have stated the same in their judgments and speeches,” he added, highlighting that chief justices have been adamant against any curtailment of their absolute powers.

“As a result, we now see references to judicial imperialism and one-man shows in Supreme Court judgments,” the legal expert said.

He also said that in England, the House of Lords (now the United Kingdom Supreme Court) typically sits in benches of five. “But in the two most recent important political cases (i.e., the withdrawal of the UK from the SC & Boris Johnson’s illegal proroguing of parliament), a maximum of 11 judges sat together to gain from the collective wisdom of all judges,” he highlighted.

"The vehement resistance to the reasonable suggestions to form a full court to authoritatively decide such matters and avoid allegations of partisanship seems quite baffling to me,” Ahmed said.

Commenting about the prevailing situation after the issuance of two judges’ order, former additional attorney general Tariq Mahmood Khokhar said that the script is familiar as a CJP is isolated with diminished authority and dignity.

"The Supreme Court is under siege from within and without. The reference against Qazi J, the fixation and non-fixation of cases, the constitution of benches, and case markings are some of the known contentious issues. Political polarity has also played its role. Full court hearing(s) will be a step back from the brink. At this critical junction, this nation needs a united Supreme Court. In 1997 a CJP was devoured. Hope history will not repeat itself,” said Khokhar.

He also agreed that inflexible integrity is the secret of moral authority. A fissured institution debases its integrity, he added.

It is being witnessed that the apex court is facing an unprecedented widespread perception that differences among its senior judges are growing starker in the light of recent unusual events – a festering issue that many anticipate might worsen.

A slew of public statements and retorts — and the ensuing controversy — that capped the top court's judicial year has further deepened this perception, raising the eyebrows of many who say the extraordinary sequence of events indicates the court of last resort is divided into camps.

Apart from other issues, the supposed two camps are facing a brewing mistrust.

It is understood that Justice Qazi Faez Isa's case has severely affected the working of the apex court. The proceedings in the case have negatively affected the relationship between SC judges, who expressed their differences through judicial orders, speeches, and letters.

This is in many ways unprecedented as no such divisions were witnessed during the era of former CJP Iftikhar Muhammad Chaudhry under whom no judge had ever dissented on any crucial issue.

Although some clashes between the top court’s judges came to the fore during the ex-CJP Mian Saqib Nisar's tenure, the CJP handled the situation tactfully.

However, Justice Isa had raised serious questions over the manner in which public interest litigations were initiated by the human rights cell of the top court during Nisar’s tenure. He had also expressed serious concerns over the dissolution and reconstitution of a bench by CJP Nisar at the SC’s Peshawar Registry on May 8, 2018.

After seven months, another judge, Justice Syed Mansoor Ali Shah, called into question the May 8 reconstitution of an apex court bench and called the decision ‘unwarranted and unprecedented’.

A senior lawyer says that it is almost impossible that conflict among SC judges will end in the prevailing situation.

However, he urged both sides to work together for the betterment of institutions otherwise history will not remember them in good words.