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ISLAMABAD: The constitution of benches is the prerogative of the Chief Justice and to change this practice requires amendment in the Supreme Court Rules and not through ordinary legislation by Parliament, said senior lawyers.

In a Full Court Reference held on March 25 on the retirement of Justice Qazi Muhammad Amin, Chief Justice of Pakistan (CJP) Umar Ata Bandial said the prerogative to constitute benches historically lies with the chief justice, adding the chief justice had been forming benches for the last 20 years. “Why are objections being raised without any reason,” he asked.

Justice Qazi Faez Isa had raised the formation of benches issue when the senior most judges were not incorporated in the bench, which heard Presidential Reference Article 63(A) of the Constitution.

The SC most senior puisne judge in a letter, written to CJP Bandial, pointed out that the composition of the five-judge bench that is hearing a presidential reference on Article 63(A) of the Constitution consisted of judges who were 4th, 8th, and 13th in the seniority list of the court.

“This has been done by discarding the good practice of structuring the CJP’s discretion by predecessors of constituting benches consisting of senior-most judges when cases involved important constitutional questions,” he had said.

Supreme Court Bar Association (SCBA) and Pakistan Bar Council (PBC) in a joint meeting on July 28, 2022 urged the federal government to immediately frame legislation in terms of Articles 175(2) and 191 of the Constitution regulating the manner of exercise of jurisdiction of the Supreme Court and, in particular, to end the sole discretion of the Chief Justice in relation to the constitution of benches, fixation of cases and initiation of suo motu proceedings and vest the same in a Committee comprising the five senior-most judges of the Court.

Senior advocate Hafiz Ahsaan Ahmad Khokhar, a renowned constitutional expert, said that the constitution of benches to hear cases lies exclusively and is within the domain and prerogative powers of the Chief Justice not only in Pakistan but in many other countries of the world including India and anything that curtails the authority of the Chief Justice would intrude into the exclusive duty, functions and authority of the Chief Justice relating to constitution of benches and for allocation of cases by them.

He clarified that in many countries including India the power of constitution of benches has been given to Chief Justice through the constitutional provision but in Pakistan, this duty and prerogative for constitution of benches to hear the cases has been given to Chief Justice of Pakistan under Order XI of Supreme Court Rules, 1980, and these Rules have been made in view of the provision of Article 191 of the Constitution.

The constitutional expert further stated that as per Article 191 of the Constitution, the Supreme Court has been conferred the power to make rules for regulating the practice and procedure of the Court, and in pursuance thereof, as per Order XI of Supreme Court Rules, 1980 every cause, appeal or matter shall be heard and disposed of by a Bench consisting of not less than three Judges to be nominated by the Chief Justice of Pakistan and this practice has continued for decades in Pakistan.

Hafiz Ahsaan said the power and prerogative for the constitution of benches can not be curtailed or regulated through ordinary legislation but would require an amendment in the Constitution of Pakistan, which requires to make or add a constitutional provision with two-thirds majority of the total membership of the Parliament as per Article 239 of the Constitution.

He said that the ultimate purpose behind giving the authority to Chief Justice is to ensure that the apex court is able to fulfil and discharge the constitutional obligations which govern and provide the rationale for its existence and on a mere apprehension the authority and prerogative should not be regulated or curtailed, which would not be in the interest of a judicial institution.

President Islamabad High Court Bar Association Shoaib Shaheen, who supports Pakistan Tehreek-e-Insaf, said if the government thinks that the senior-most judges of the courts be included for the constitution of benches then it has to bring a constitutional amendment, adding that it requires two-third majority of Parliament, which the PML-N led government does not have.

He said that in India the Chief Justice is the “Master of Roster”, having the authority to allocate the cases to different Benches/ Judges of the Supreme Court.

Shaukat Siddiqui, a former judge of Islamabad High Court said there is no need to change the law, rather the Supreme Court Rules maybe amended by the apex body would resolve the problem. Azhar Siddique, said even if the government changes the process of constitution of bench by Chief Justice through constitutional amendments it would be challenged before the court as it is against the basic structure of the constitution, which has been decided in the Supreme Court judgment in Rawalpindi District Bar Association case. He said the importance of separation and independence of judiciary has also been laid down in the SC judgments in Sharaf Afridi and Al-Jehad cases.

Copyright Business Recorder, 2022

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