Daily Times

Two judges from the five-member larger bench of the Supreme Court Monday raised questions over the powers of the chief justice of Pakistan (CJP), saying the apex court “cannot be dependent on the solitary decision of one man, the Chief Justice”.

Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail made the remarks in a detailed dissenting note – released on Monday hours after the SC took up the PTI’s plea challenging the postponement of elections in Punjab – for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

“In regulating the exercise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of benches to hear such cases; the constitution of Regular Benches to hear all the other cases instituted in this Court; and the constitution of Special Benches,” it stated.

They maintained that the “power of doing a “one-man show” is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms”.

The judges wrote that the SC’s jurisdiction should not be “frequently and incautiously exercised, lest it damages the public image of the court as an impartial judicial institution”.

Justice Mandokhail and Justice Shah said they had “serious reservations on the mode and manner how [of] the original jurisdiction of this court under Article 184(3) was invoked suo motu in the present matter as well as on the constitution of the nine-member bench” which they expressed in the additional notes of the Feb 23 order.

“The original jurisdiction of this court under Article 184(3) is an ‘extraordinary’ jurisdiction, which is to be exercised ‘with circumspection’. It confers the ‘enabling powers’, and the court is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the fundamental rights,” the dissenting note said. “As the jurisdiction of this court under Article 184(3) is concurrent with that of the high courts
under Article 199, if the jurisdiction of any of the high courts has already been invoked under Article 199 and the matter is pending adjudication, then the two well-established principles are also to be considered before exercising its jurisdiction under Article 184(3) by this court:

First, where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts, then he is bound by his choice of forum and must pursue his remedy in that court Second, if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction, then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed and is pending adjudication in the lower court, otherwise it would deprive one of the parties, of his right of appeal.”

They said that if the Lahore High Court (LHC) would have decided the intra-court appeals pending before it regarding the delay in polls while the Peshawar High Court (PHC) would have decide the writ petition pending before it the SC had not taken up the suo motu notice.The judges said that the “the present suo motu proceedings and the connected constitution petitions do not constitute a fit case to exercise the extraordinary original jurisdiction of this Court under Article 184(3) of the Constitution”. They argued that the SC did not have the power to “make an order of the nature mentioned in Article 199 of the Constitution against a judicial order of a high court, directly or indirectly”.

“Hence, the present suo motu proceedings initiated, and the connected constitution petitions filed, under Article 184(3) of the Constitution are not maintainable in view of the constitutional bar of Article 199(5) read with Article 175(2) of the Constitution, in so far as they relate to the matter already decided by the single bench of the LHC in exercise of its jurisdiction under Article 199 of the Constitution.” The two also underlined that in order to strengthen the institution and to ensure public trust and confidence in the top court, “it is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the CJP”.

“This court cannot be dependent on the solitary decision of one man, the chief justice, but must be regulated through a rule-based system approved by all judges of the court under Article 191 of the Constitution, in regulating the exercise of its jurisdiction under Article 184(3) including the exercise of suo motu jurisdiction; the constitution of benches to hear such cases; the constitution of regular benches to hear all the other cases instituted in this court; and the constitution of special benches. “The power of doing a ‘one-man show’ is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.

“One-man show leads to the concentration of power in the hands of one individual, making the system more susceptible to the abuse of power. In contrast, a collegial system with checks and balances helps prevent the abuse and mistakes in the exercise of power and promote the transparency and accountability. “When one person has too much power, there is a risk that the institution may become autocratic and insulated, resulting in one-man policies being pursued, which may have a tendency of going against the rights and interests of the people. We must not forget that our institution draws its strength from public perception. The entire edifice of this court and of the justice system stands on public trust and confidence reposed in it.”

“Therefore, one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule,” they noted. They said that the SC had “time and again held how public functionaries ought to structure their discretion but has miserably failed to set the same standard for itself leaving the chief justice with unfettered powers in the matter of regulating the jurisdiction under Article 184(3) (including suo moto) and in matters of constituting benches and assigning cases.”

They said that such “unbridled power” enjoyed by the CJP had brought “severe criticism and lowered the honour and prestige of this court”. The two judges proposed that the apex court’s extraordinary jurisdiction under Article 184(3) should only be invoked only if a majority of all the judges or the first five or seven judges of the court, including the chief justice, agreed to it. They said that the criterion for selecting cases to be dealt with under this jurisdiction should also be “clearly laid down in the rules”.

The two judges also said that the core principle of federal was provincial autonomy which was defined as the autonomous functioning of the provincial legislative, executive and judicial institutions. “The federal institutions must abide by this principle in federalism. Under our Constitution, a high court of a province is the highest constitutional court of that province and is conferred with the jurisdiction under Article 199 of the Constitution to judicially review the acts and proceedings of all persons performing, within its territorial jurisdiction, functions in connection with the affairs of the federation, a province or a local authority. “The principle of provincial autonomy requires that when a matter which relates only to a province, and not to the federation or to more than one provinces, the high court of that province should ordinarily be allowed to exercise its constitutional jurisdiction to decide upon that matter, and this court should not normally interfere with and exercise its jurisdiction in such a matter under Article 184(3) of the Constitution, which jurisdiction is primarily federal in character.