“One-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule.”
News Desk
ISLAMABAD: Two senior judges of the Supreme Court of Pakistan challenged the chief justice’s power to form a bench or take suo motu notices, media reported.
Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court in their detailed dissenting judgment in a case decided earlier this month called for revisiting the power of the “one-man show” enjoyed by the chief justice.
Their judgment is about the case of suo motu notice taken by Chief Justice Umar Ata Bandial on February 22 about elections in Punjab and Khyber Pakhtunkhwa (KP) provinces.
The court’s five-member bench on March 1 by a 3-2 majority decision directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP.
Justice Shah and Mandokhail differed with the majority judgment, which also allowed the ECP to propose a poll date that deviates from the 90-day deadline by the “barest minimum”, in case of any practical difficulty.
In their detailed 28-page note, the two dissenting judges talked at length about the suo motu powers, saying that the top court’s “original jurisdiction” under Article 184(3) of the Constitution was not only “‘discretionary’ but also ‘special’ and ‘extraordinary’, which is to be exercised ‘with circumspection’ only in ‘exceptional cases’ of public importance relating to the enforcement of fundamental rights that are considered ‘fit’ for being dealt with under this jurisdiction by the court”.
“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.”
The two judges said that the judicial system stands on public trust and confidence and stressed that the “one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule.”
They said that the chief justice was conferred with wide discretion in the matter of constituting benches and assigning cases to them.
The two judges termed it “unbridled power” enjoyed by the chief justice in taking up any matter as a suo motu case and forming special benches that have “brought severe criticism and lowered the honour and prestige of this court.”
The two judges said they had “serious reservations on the mode and manner how 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 February 23 order.
Earlier a nine-member bench was set up for the suo motu case but later the bench was reconstituted to include five judges.
The judges said, “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”.
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 Chief Justice of Pakistan”.
They proposed “a rule-based system approved by all judges” 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,” they said.
“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 promotes transparency and accountability.” They further demanded: “Therefore, the one-man show needs a revisit as it limits diverse perspectives, concentrates power, and increases the risk of an autocratic rule.”
The judges said the “unbridled power” enjoyed by the chief justice to form benches had brought “severe criticism and lowered the honour and prestige of this court”.
They also accused that due to the suo motu proceedings and the connected constitutional petitions, the top court had been “ushered into a ‘political thicket’.” Citing technicalities, they also rejected the 3-2 judgment in the suo motu case by saying that it was actually a 4-3 judgment to reject the maintainability of the case, as two judges out of the original nine-member bench had recused themselves and two had rejected it.
“Therefore, we are of the opinion that the dismissal of the present suo motu proceedings and the connected constitution petitions is the order of the court by a majority of 4 to 3 of the seven-member bench.”
The development comes as the top court is hearing a case about the decision of the Election Commission of Pakistan to postpone the provincial election till October 8 which is well beyond the 90 days deadline by the constitution to hold elections after the dissolution of an assembly.
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