‘One-man show’: Justice Mansoor Ali Shah voices strong objections to Practice, Procedure ordinance

Supreme Court senior puisne judge Justice Syed Mansoor Ali Shah has voiced strong objections to the recent amendments to the Supreme Court's Practice and Procedure Ordinance, outlining his reservations in a detailed three-page letter.

The letter, addressed to the reconstituted committee on Monday, criticises both the substance of the amendments and the process by which they were implemented.

The PML-N led government had further empowered Chief Justice of Pakistan Qazi Faez Isa to form benches and fix high profile cases by nominating judge of his choice through amendments to the Supreme Court Practice and Procedure Act 2023 on Friday.

Soon after the promulgation of the ordinance on amendments in the Practice and Procedure Act 2023, CJP Isa reconstituted a committee wherein Justice Aminuddin Khan has been included as a third member by ousting Justice Munib Akhtar. Justice Aminuddin Khan is the fifth most senior judge of the SC. Interestingly, Justice Yahya Afridi, who is the fourth most senior, has not been included in the committee.

Justice Shah began by expressing alarm at the hasty reconstitution of the Practice and Procedure Committee, which took place just hours after the amending ordinance was promulgated. He highlighted the lack of transparency in the removal of Justice Munib Akhtar from the committee, stating, "No reasons were given as to why the second senior-most judge, Justice Munib Akhtar, was removed from the composition of the Committee, who had been attending all the meetings since March 11, 2024, and was available for attending today's meeting."

The justice further criticised the arbitrary inclusion of a less senior judge in the committee, describing it as "unfortunate cherry-picking" that undermines democratic principles. "This selective inclusion of committee members reflects an undemocratic and one-man show approach, precisely what the Act aimed to discourage and replace," Justice Shah noted, referencing the Supreme Court’s previous stance against such practices.

Justice Shah underscored the importance of collegial decision-making within the judiciary, a principle that he argued has been compromised by the recent changes. "The principle of collegial working stands as a cornerstone for ensuring justice, fairness, and the larger good of the people who seek its intervention. The concentration of ultimate administrative powers in the hands of a single individual, such as the Chief Justice, runs counter to the ideals of democratic governance and judicial fairness," he wrote, citing the Supreme Court’s own ruling in the Raja Amer case.

He also questioned the necessity of the ordinance's promulgation without parliamentary debate, suggesting it lacked the urgency required for such a measure. "The constitutional conditionality of the very act of promulgating the amending Ordinance also requires judicial determination as no urgency has been spelled out that necessitated its promulgation, instead of a proper amending enactment through the Act of Parliament," Justice Shah pointed out.

In his letter, Justice Shah called for a full court meeting to review the ordinance, stating, "Independence, transparency, and collegiality required the Hon'ble Chief Justice to raise an immediate alarm and concern on the promulgation of the amending Ordinance in the light of the Court's celebrated pronouncement in Raja Amer." He warned that any decisions made by the reconstituted committee could undermine the court's credibility and violate the Full Court Bench's decision.

Justice Shah concluded by reaffirming his commitment to judicial independence, saying, "Until the constitutional validity of the amendments made by the amending Ordinance is determined by the Full Court Bench of this Court, or the judges of this Court resolve to act upon the amendments in a Full Court meeting on the administrative side, I, with respect, regret that I cannot participate in the meetings of the Committee."

The letter highlights significant internal tensions within the judiciary, with Justice Shah’s pointed criticisms raising important questions about the balance of power within Pakistan's highest court. His insistence on adhering to principles of transparency and collegiality underscores the ongoing struggle to maintain judicial independence in the face of political and administrative pressures.