ISLAMABAD: A joint judgment of Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail said their verdict concurring with the decision of the other two SC judges in dismissing the suo motu and the connected petitions on the Punjab and Khyber-Pakhtunkhwa elections is the order of Supreme Court with a majority of four to three.
In the 27-page judgment, announced on Monday, both judges also discussed the power of the chief justice regarding taking suo motu; the constitution of Regular Benches and the constitution of Special Benches.
Chief Justice Umar Ata Bandial on February 22 had constituted a nine-member bench headed by him and comprising Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah for hearing the suo moto and the petitions of the Speakers of Punjab and the Khyber-Pakhtunkhwa and the Islamabad High Court Bar Association (IHCBA).
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However, due to the objections of the PPPP, PML-N, and the JUI-P and the bench members Justice Ijazul Ahsan and Justice Mazahar Naqvi had recused, while Justice Yahya and Justice Athar disassociated after rendering the order on the suo moto and the petitions.
The chief justice; therefore, reconstituted a five-judge bench, which passed the order with a three to two majority.
The joint judgment of Justice Mansoor and Justice Jamal said: “We are of the considered view that our decision concurring with the decision of our learned brothers (Yahya Afridi and Athar Minallah, JJ.) in dismissing the present suo motu proceedings and the connected constitution petitions is the Order of the Court with a majority of 4 to 3, binding upon all the concerned,” said the judgment.
The answer lies in understanding the administrative powers enjoyed by the Hon’ble Chief Justice in reconstituting a Bench when the Bench once constituted and assigned a case has commenced hearing of a case. They stated; “Once the bench is constituted, cause list is issued and the bench starts hearing the cases, the matter regarding constitution of the bench goes outside the pale of administrative powers of the Chief Justice and rest on the judicial side, with the bench.”
The judgment further said: “Once a bench has been constituted, cause list issued and the bench is assembled for hearing cases, the Chief Justice cannot reconstitute the bench. They explained that the bench may also be reconstituted if it is against the Rules and requires a three-member bench instead of two. In such eventualities the bench passes an order to place the matter before the Chief Justice to nominate a new bench.”
The judgment said that after having made a final decision on the matter at an early stage of the proceedings of a case, the non-sitting of a judge in the later proceedings does not amount to his recusal from hearing the case nor does it constitute his exclusion from the Bench.
The reconstitution of the Bench was simply an administrative act to facilitate the further hearing of the case by the remaining five members of the Bench and could not nullify or brush aside the judicial decisions given by the two judges in this case, which have to be counted when the matter is finally concluded.
Justice Mansoor and Justice Jamal wrote; “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.
Copyright Business Recorder, 2023