Supreme Court procedures once again became the subject of a debate on Monday, as two judges penned a note about the Chief Justice’s discretionary powers.

“It is high time that we revisit the power of ‘one-man show’ enjoyed by the office of the Chief Justice of Pakistan,” wrote Justice Mansoor Ali Shah in a dissenting judgement on the election delay case that was made public late on Monday. Justice Shah wrote that the judgement was written on his and Justice Jamal Mandokhail’s behalf

The judgement also revealed that the two judges believed the judgement to be a 4-3 judgement against the admissibility of the suo motu notice instead of the 3-2 verdict that was already announced. Government lawyers have already maintained that the verdict was 4-3 in their favour.

However, by way of discussing how the suo motu notice was taken, the two dissenting judges have tried to make a larger case about the CJP’s authority to make or break benches as per his will.

“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.”

The judgement begins by saying that a two-member bench had taken suo motu notice of the delay in elections in KP and Punjab while hearing a case related to the transfer of a civil servant. The judgement adds that the matter was already decided by the provincial high-court and the Pakistan Tehreek-e-Insaf had not moved the court itself till that point. The PTI only filed its petitions after the suo motu notice.

Justice Shah also wrote that the matter of an alleged audio leak involving a judge of the court was not taken into account and the said judge (Justice Mazahar Ali Naqvi) was made part of the bench.

While the judgement says that the matter of two judges recusing themselves is a ‘matter between the Judges and their conscience, only to be adjudged by history’ it does raise questions on the sole power of the CJP to make them part of the bench in the first place. Justice Ijaz ul Ahsan and Justice Mazahar Naqvi recused themselves after immense criticism from the PMLN.

The judgement adds that after the controversy and a subsequent petition by the PMLN asking the judges to recuse themselves from the proceedings, the nine-member bench held a meeting. While the two judges under criticism decided to recuse themselves, two other judges who had already disagreed with the suo motu notice, Justice Athar Minallah and Justice Yahya Afridi, left their inclusion up to the CJP.

“However, I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions,” the two judges reportedly said.

Upon this, the bench was reconstituted to five members and heard the rest of the case. However, the fact that these two judges had already made their views on the suo motu notice clear means that they would be counted as part of the bench just not included in the hearings.

“The decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions are the Order of the Court with a majority of 4 to 3, binding upon all the concerned,” the judgement reads.

The judgement says that the ‘non-sitting’ of a judge after he has already made a decision does not amount to his recusal or exclusion from the bench. It says that benches have to be reconstituted and then put into the cause list again for benches to be reconstituted. It adds that simply removing judges from a bench is not permissible under the law or within the powers of the CJP.

The judgement then gets into the general matter of the CJP’s power over the Supreme Court’s affairs and says that the SC needs to become a ‘rules-based institution’ and become strong, open transparent.

“The discretion of the Chief Justice needs to be structured through rules.”

‘One-man show’

The judgement added that the power of doing a one-man show was not “only anachronistic, outdated and obsolete” but was also “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,” it said, adding that a collegial system (a form of social organization based on shared and equal participation of all its members) with checks and balances helps prevent the abuse and mistakes in the exercise of power and promote the transparency and accountability.

It warned that there was a risk that the institution might become “autocratic and insulated” when one person has too much power, resulting in one-man policies being pursued.

“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,” it said and stressed the need for revisiting a one-man show as it limits “diverse perspectives, concentrates power, and increases the risk” of an autocratic rule.

On the other hand, it said the collegial model ensures good governance as it rests on collaboration, shared decision-making and balance of power to ensure the best outcome.

‘Unfettered powers’

It reminded that the chief justice was conferred with wide discretion in the matter of constituting benches and assigning cases to them under the present Supreme Court Rules 1980.

“Ironically, this Court has time and again held how public functionaries ought to structure their discretion42 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 motu) and in matters of constituting benches and assigning cases,” it said.

“It is this unbridled power enjoyed by the Chief Justice in taking up any matter as a suo motu case and in constituting Special Benches after the institution of the cases and assigning cases to them that has brought severe criticism and lowered the honour and prestige of this Court. Our acts and decisions as members of a constitutional institution are recorded in history and commented upon,” the judgement said.