It is nothing less than a strong critique of the chief justice by his fellow judges as the long-simmering friction within the top judiciary finally comes out into the open. The dissenting judges have challenged what they call “the solitary decision of one man” and they want the “unbridled power enjoyed by the chief justice” to be restrained.
It may not be unusual for judges to have differences of opinion, but the remarks made by Justices Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail in their detailed dissenting note on the court’s ruling on elections for the Khyber Pakhtunkhwa and Punjab assemblies go beyond the norm. They have not only disputed the validity of the ruling but have also questioned the chief justice’s discretion to reconstitute the bench.
According to them, last month’s proceedings, following the suo motu notice taken by Chief Justice Umar Ata Bandial on the delay in elections, stood rejected by a majority of 4-3, contrary to the 3-2 judgement announced by the reconstituted five-member bench.
The release of the detailed dissenting note on the eve of the hearing of the petition against the postponement of polls by the Election Commission of Pakistan, in violation of court orders, has turned the entire case upside down, worsening the existing state of anarchy.
Many legal experts may not concur with the two judges – that the suo motu action was rejected by the majority – but questions about the chief justice’s power to constitute benches at will appear valid. What is also being debated is the validity of his decision to take suo motu notice on the election issue.
The controversy started after Justice Yahya Afridi and Justice Athar Minallah were not included in the reconstituted bench following their objections over the notice. The ruling itself did not come as a surprise, as the reconstituted bench changed the balance of opinion. Given that two other judges had recused themselves, the argument that four out of the remaining seven judges had rejected the suo motu action has some rationale.
Notwithstanding the validity of the majority ruling by the reconstituted five-member bench, the chief justice’s decision not to go for a full court on critical constitutional issues has created doubts in the minds of many over the impartiality of the top judge and widened the cleavage within the institution.
It is not for the first time that the process of the formation of benches and the absolute power exercised by the top judge have been questioned, but the remarks of Shah and Mandokhail show a breakdown in institutional working.
Concerns that there is a deliberate move to keep out the senior-most judges, and that critical constitutional cases are assigned to a particular set of judges have contributed to making verdicts controversial. It has been asked why Justice Qazi Faez Isa, the senior puisne judge who will be chief justice in a matter of months, has not been included on these benches.
An outspoken judge known for some landmark judgements, Isa has been a strong critic of the arbitrary process of constituting benches. It is perceived that he has paid the price for his convictions, but that has not deterred him from speaking out. His exclusion from the bench in such a case is a sad reflection on an institution that is expected to set the highest moral and ethical standards.
The dissenting note also brings into question the exercise of absolute power by the chief justice. The concentration of authority in the office of the chief justice has created distortions and raised doubts about the fairness of the judicial system. The increasing tendency of taking suo motu notice of political issues has drawn criticism from both judges and lawyers.
As the judges asserted, “the court cannot be dependent on the solitary decision of one man, the chief justice… “. They said, “The power of doing a ‘one-man show’ is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible [with] modern democratic norms.”
Some recent suo motu actions taken by the chief justice have indeed pushed the apex court into political controversy, leading to questions about institutional impartiality. It is not a good omen for the rule of law. Certain decisions have been seen as an attempt to rewrite the Constitution.
Indeed, the collapsing democratic process and growing political confrontation have made the court a battleground for the two major rival parties. That has also drawn the court into political controversy, with each party expecting a ruling in its favour. It is then not surprising to see the judges become targets of criticism by those who disagree with their verdict.
Most of the criticism may be unfair, but the current political polarisation also requires the judiciary not to extend its mandate or play the role of arbiter in the power game. Unfortunately, some recent suo motu actions have done the opposite. This happens when the powers of decision-making are concentrated in the hands of one person.
The growing divisions within the court are alarming and there is an urgent need to reform the system and establish a collective decision-making process, particularly when it comes to suo motu actions and taking up cases that should be decided in political forums.
Power vested in a single person has other perils, as we have seen in the past when some chief justices acted more like autocrats encroaching on the domain of other institutions. Some turned to populism for self-projection.
All this has tarnished the image of the apex judiciary and affected public trust and confidence in the judicial process. The criticism from within must serve as a wake-up call for the institution to reform the system. The dissenting note may well reflect the sentiments of other fellow judges too. The chaos and the problems within the system highlighted by the two judges must be taken seriously to restore confidence in the legal system.
This article first appeared in Dawn.