Legal experts call for revisiting ‘unbridled powers’ of Pakistan’s top judge to ensure transparency

ISLAMABAD: The authority of the chief justice of Pakistan to constitute Supreme Court benches, take suo motu notices, and make judicial appointments should be revisited, said legal experts on Tuesday, suggesting that a collegial system should be put in place to ensure transparency and accountability.
The issue came up for discussion after two apex court judges, Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail, sought an end to the “one-man show” at the top court while writing a dissenting note, wherein they referred to the chief justice’s powers.
The note was issued hours after the Supreme Court took up the Pakistan Tehreek-e-Insaf (PTI) party’s plea against the postponement of the Punjab polls by the country’s election regulatory authority.
The court had directed the Election Commission of Pakistan in a 3-2 verdict earlier this month to hold consultations with President Arif Alvi to ensure that Punjab polls were held within 90 days as stipulated in the constitution.
In the dissenting note, the two judges said the suo motu proceedings initiated by Chief Justice Umar Ata Bandial over the issue were dismissed by a 4-3 majority of a seven-member bench.
The position taken by the two judges stirred fresh controversy while generating a debate among the legal fraternity over the chief justice’s powers.
“The Supreme Court Rules, 1980, do provide unbridled powers to the chief justice in numerous matters including the suo motu and constitution of benches that should be reformed to make it a collegial responsibility,” Advocate Taimur Malik told Arab News.
He informed that legal experts and judges had raised objections over the “unrestrained authority” of the chief justice numerous times, though the issue was never properly addressed.
“Judges also raised this issue in the past, but they did not change anything after their elevation to the chief justice’s position,” he continued.
“It is unfortunate that the dissenting note of the two judges on a constitutional matter has created confusion, and now it is up to the Supreme Court to dispel it through an order,” he added.
The two judges in their dissenting note said it was important to revisit the chief justice’s power “to strengthen our institution and to ensure public trust and public confidence in our court.”
“The power of doing a one-man show is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms,” the judges said.
Advocate Ali Hussain Bhatti said the chief justice was invested with the “executive powers” in addition to his role as the top court judge to look after the administrative issues, which could be misused.
“The next chief justice can abolish these powers and formulate a collegial system to ensure transparency while constituting benches and assigning cases,” he told Arab News while referring to retirement of the incumbent chief justice, which is scheduled in September.
Asked if there were divisions within the top court, he said that every judge could have an independent opinion while interpreting different legal and constitutional matters, though they were “all bound to follow the law and constitution in letter and spirit in their judgments.”
“The difference of opinion doesn’t amount to any division within the judiciary,” he added.
Barrister Shoaib Razzak said that the matter of elections in Punjab was already pending before the Lahore High Court when the chief justice decided to take suo motu on it.
“There was no need for a suo motu hearing when the Lahore High Court was already looking into the matter,” he told Arab News.
“All Supreme Court judges are equal and the chief justice is first among equals,” he added. “So, the court should reform the powers of the top judge through internal debate and discussion.”
Regarding the dissenting note, he said it was a routine matter and the court would keep working as an independent institution to dispense justice.
“Dissenting notes in a judgment have no legal value since the majority verdict prevails,” Razzak said.