Debate persists over CJP’s bench selection

Justice Bandial steadfastly denied requests for full courts during his tenure

ISLAMABAD:

 

Despite the federal government's requests and fellow judges’ suggestions, Chief Justice of Pakistan (CJP) Umar Ata Bandial has not formed a full court to hear politically sensitive, high profile cases in the last one and a half years — since taking oath as the CJP on February 2, 2022.

When the apex court was “restored” in March 2009, it was a unified institution with no major difference of opinion among the judges on constitutional matters.
However, despite this unanimity of views, former chief justice Iftikhar Muhammad Chaudhry formed a full court to hear petitions against the 18th Constitution Amendment as well as vires of the National Reconciliation Ordinance (NRO), 1999.

After the retirement of Justice Chaudhry, the SC showed a diversity of views. Former CJP Nasirul Mulk had also formed a full court to decide petitions against the 21st Constitution Amendment.

However, every CJP, except Justice Asif Saeed Khosa, preferred to include like-minded judges in special/larger benches. Same happened during the eras of former CJPs Saqib Nisar and Gulzar Ahmed.

Justice Asif Saeed Khosa had tried to set a precedent that senior most judges should be included in benches hearing important cases. However, his successors did not follow that precedent.

It was on September 21, 2019 that a full court was formed—for the last time—on Justice Qazi Faez Isa's request to hear his petition against a presidential reference that sought his removal due to his alleged failure to mention his family members’ foreign properties in his wealth statement.

While Justice Khosa was the CJP then, the bench was headed by Justice Bandial. Surprisingly, the leading judge was in minority and his ruling was overturned by the majority judges in review jurisdiction.

During his term as the CJP, Justice Umar Ata Bandial has not been able to end the perception that he includes his like-minded judges in benches hearing significant matters.

No full court was formed to hear the Supreme Court Bar Association’s (SCBA) petition for completion of the process of no confidence against former prime minister Imran Khan in view of Article 95 of Constitution. A five-judge larger bench led by CJP Bandial himself heard the matter.

The same bench adjudicated a presidential reference seeking interpretation about scope of Article 63-A of the Constitution. Former PM Imran Khan had moved an application through Babar Awan, requesting formation of a full court but no full court was formed. However, the PTI did not press the matter.

The ruling coalition had requested a three-member bench led by CJP Bandial to form a full court to hear a matter regarding interpretation of Article 63-A after then Punjab Assembly deputy speaker Dost Mazari discarded votes of 10 Pakistan Muslim League (PML-Q) MPAs in election for the chief minister.

However, their request was turned down. Subsequently, the ruling coalition and others boycotted the court proceedings. The issue regarding constitution of a full court was raised again when the CJP took suo motu notice of delay in announcement of polls in Punjab and Khyber-Pakhtunkhwa.

But the top judge did not form a full court to hear the matter. Even Justice Athar Minallah in his judicial note said interpretation of the Constitution was the prerogative as well as the duty of this court.

“It is also an onerous duty to protect, preserve and defend the Constitution. It has been observed by this court that the Constitution is an organic document designed and intended for all times to come.

“Interpretation of the Constitution by this court has a profound impact on the lives of the people of this country, besides having consequences for future generations.

“The framers of the Constitution have conferred an extraordinary jurisdiction on this court under Article 184(3). The manner in which this power is to be exercised is in itself a matter of immense public importance.

“While invoking the jurisdiction great care has to be exercised. Article 176 of the Constitution describes the constitution of this Court.
“I am of the opinion that it is implicit in the language of Article 184(3) that the conferred extraordinary original jurisdiction must be entertained and heard by the full court.

“In order to ensure public confidence in the proceedings in hand and keeping in view the importance of the questions raised for our consideration, it is imperative that the matter regarding the violation and interpretation of the Constitution is heard by a full court. The interpretation of Article 184(3) of the Constitution in this context, therefore, also requires interpretation,” Justice Minallah said.

Another judge, Syed Mansoor Ali Shah, expressed reservation over not including senior most judges—Justice Isa and Justice Sardar Tariq Masood—in a larger bench hearing election matters. The ruling parties boycotted these court proceedings also.

The federal government had also requested the SC to form a full court to hear petitions against the Supreme Court (Practice and Procedure) Act 2023 which authorizes a committee of three senior judges including the CJP to form benches and list cases.

That law is suspended by an eight member larger bench led by CJP Bandial. The bench has yet to take final decision on the government's plea about the constitution of the full court.

The government again disputed another larger bench hearing petitions challenging the audio leaks commission. The government had sought recusal of three judges including the CJP. The bench has reserved its judgment on the government's plea.

Now Justice Yahya Afridi has urged the CJP to constitute a full court to hear petitions against court martial of civilians under the Pakistan Army Act, 1952 in order to restore public trust in the judiciary.

Justice Syed Mansoor Ali Shah on June 22 also expressed reservations over the CJP’s decision not to form a full court comprising all available judges to hear pleas against civilians’ court martial.

Now a debate has started as to why CJP Bandial does not consider requests and suggestions about forming full courts. Even petitioners including the Pakistan Tehreek-e-Insaf (PTI) leaders have desired for formation of a full court in the recent past to hear sensitive matters.

Some senior lawyers believe that the CJP does not want public display of judges’ differences as was witnessed in the military trial case which two senior most judges refused to hear. They said there is mistrust among judges and CJP Bandial wants to rely only on eight judges

Outcome of the Justice Isa case was also surprising as majority judges had overturned CJP Bandial's order for the Federal Board of Revenue (FBR) to conduct an inquiry into foreign assets of Justice Isa’s family members.
One section of lawyers said the government's requests for forming a full court in different cases are not based on bona fide.

"Justice Bandial is the last judge in our entire judiciary from Musharraf’s era. Everyone else came to the fore in the post-Lawyers Movement period.

“Unfortunately, since 2017, Justice Bandial has remained part of all those decisions which have lowered the reputation of the judiciary as an independent institution," says Umer Gilani advocate.

Gilani also said there is a view amongst jurists that a full court is only needed when the Supreme Court is called upon to reexamine a question which was earlier decided by another full bench. The other view is that there is no such constraint on the CJP to form a full court bench under the Supreme Court rules.

“A full bench can and should be constituted whenever the court is called upon to examine a question which is politically divisive and where it is helpful to demonstrate solidarity of the entire judiciary. It is possible that the CJP subscribes to the earlier view and therefore doesn't ever constitute a full bench.”

According to Ahsaan Khokhar advocate, even though Order XI of the Supreme Court Rules of 1980 stipulates that every cause, appeal, or matter must be heard and decided by a bench of at least three judges to be appointed by the CJP, there are precedents of forming a full court in numerous cases.

He said the SC judges have stated in numerous rulings, including reported as PLD 2021 Supreme Court page 63, that the term "master of roster" cannot be interpreted to mean that the CJP has unrestricted discretion regarding the forming benches rather

Khokhar said the discretion granted to the office of the CJP for forming benches is to be exercised in accordance with the Supreme Court Rules 1980.

He said for the first time, the SC held in Qazi Faez Isa versus Federation of Pakistan case–reported as PLD 2021 Supreme Court page 649—that though the formation of review benches or any other benches is the sole prerogative of the CJP under Order XI OF Supreme Court Rules, but in doing so, the CJP should ensure substantial compliance with Rule 8 of Order XXVI of Supreme Court Rules 1980 by including the author Judge (if available) in the remit of the review bench.

Khokhar said while the CJP is the only one who has the authority to form benches and full court at the same time under the Supreme Court Rules, it is crucial for the administration of justice that in cases where specific and important constitutional interpretations are required, these cases should be heard by a full court or by all the available judges of Supreme Court for supremacy of the Constitution.

He said cases likes dissolution of the National Assembly in April 2022, the interpretation of Article 63A of the Constitution, and the holding of elections in Punjab and the K-P were deemed appropriate cases for the formation of a full court of Supreme Court because in each of those cases a thorough interpretation of the Constitution was required.

He emphasized that the current case which is pending in the Supreme Court pursuant to Article 184(3) of the Constitution for holding the trials of civilians in military courts is another appropriate case to be heard by a full court.

“The Supreme Court has previously rendered judgments on the subject reported as PLD 1975 SC 506, PLD 2007 SC 405, PLD 1996 SC 714, PLD 2015 SC 401, and 2017 1249 through different benches with the strength of 3, 5, and 17 judges, and now it becomes much more crucial when some judges on the bench and the petitioners have requested formation of a full court,” he said.