Splitting justice

Editorial Board
Wednesday, Mar 29, 2023

Once again, the Supreme Court finds itself the subject of headlines. This time judicial history of sorts has been made through a 27-page detailed ruling given by Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the SC. Claiming to be ‘the’ judgment in the PTI’s plea over the delay in the Punjab and Khyber Pakhtunkhwa elections, the ruling says that the two honourable justices are in agreement with the decisions of Justice Yahya Afridi and Justice Athar Minallah who had questioned the intent of the suo motu and urged the constitution of a full bench in the SC. In essence, Monday’s order seems to say that the Punjab election suo motu was dismissed 4-3: “We believed that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ) in dismissing the present suo motu proceedings and the connected constitution petitions, had become the order of the court by a majority of 4-3 while our other three learned brothers held the view that their order was the order of the court by a majority of 3-2.” The honourable justices have also added that they are “fortified” in their opinion “by the precedent of the well-known Panama case. In the said case, the first order of the court was passed by a 3-2 majority”. The justices have said that the present constitution petitions should be dismissed and the suo-motu proceedings dropped.

It may be recalled that, in a 3-2 split decision a few weeks ago, the Supreme Court’s larger bench had said that elections should be held within 90 days in both Punjab and KP. At that time, the PDM government had taken the plea that because it was essentially a seven-member bench – and not a five-member bench that eventually gave the final verdict – even after two judges recused themselves, this petition had been rejected by 4-3. With Justice Shah and Justice Mandokhail’s order now, the PDM will no doubt feel vindicated in its interpretation of the SC verdict. The decision essentially also opens up a whole new debate on whether the 3-2 split decision stands or not. The PTI is sticking to its stance that Monday’s order is in fact a ‘minority judgment’ and should be seen as such.

Perhaps, even more important though is the larger issue all this points to: the perception – now quite justified – that there is a split in the superior judiciary as far as the some larger questions go. Both justices in yesterday’s order have questioned the powers of the chief justice of Pakistan: “We find it essential to underline that in order to strengthen our institution and to ensure public trust and public confidence in our court, it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the chief justice of Pakistan.” While this is not the first time questions have been raised about bench-fixing or the formation of benches at the discretion of the CJP – and even the powers of the CJ in the appointment if judges – what this order has done is document this in the form of a written order by no less than peer judges. Legal experts have been pointing to the need for a rethink or at least a revisit of the discretionary powers currently vested in the chief justice’s office. With fellow judges asking the same questions, one wonders how long judicial reforms can be held off – especially as bench formation has increasingly become a controversial subject. By most accounts, it may be in the larger interest if the current constitutional questions in the court are looked at by a full bench so that our honourable apex court is not the subject of any further controversy. This and judicial reforms pertaining to the highest office in the highest court of the land are now inevitable.