Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court have released a detailed dissenting note calling for the reconsideration of the power of the Chief Justice to make unilateral decisions.
The dissenting note released on the same day when the Chief Justice of Pakistan (CJP) Umar Ata Bandial constituted a five-member bench to take up Pakistan Tehreek-e-Insaf (PTI) petition against the Election Commission of Pakistan’s (ECP) decision to postpone Punjab elections till October 8 has sparked a debate about the power of the "one-man show" enjoyed by the CJP.
In their note related to the court's March 1 verdict regarding the holding of elections in Punjab and Khyber Pakhtunkhwa, the judges called for a re-examination of the Supreme Court's dependence on the solitary decision of one person [CJP], saying that the top court could not function without the consensus of all its members.
The dissenting note suggests that the jurisdiction of the Supreme Court should not be exercised "frequently and incautiously" and that it should be exercised only in exceptional cases of public importance relating to the enforcement of fundamental rights.
The judges also expressed their reservations about how the court's original jurisdiction under Article 184(3) of the Constitution was invoked suo motu in the present matter and the constitution of the nine-member bench.
Article 184(3) of the Constitution outlines the Supreme Court's original jurisdiction. It enables it to assume jurisdiction in matters involving a question of "public importance" concerning the "enforcement of any of the fundamental rights" of Pakistan's citizens.
The judges noted that this jurisdiction should be exercised with circumspection and that it confers "enabling powers" on the court, which is not bound to exercise them even where the case brought before it involves a question of public importance with reference to the enforcement of any of the fundamental rights.
The two judges pointed out that the jurisdiction of the Supreme Court under Article 184(3) is concurrent with that of the high courts under Article 199. Suppose the jurisdiction of any of the high courts has already been invoked under Article 199, and the matter is pending adjudication. In that case, the two well-established principles should be considered before exercising its jurisdiction under Article 184(3) by the Supreme Court.
The first principle is that where two courts have concurrent jurisdiction and a petitioner elects to invoke the jurisdiction of one of the courts, then he is bound by his choice of forum and must pursue his remedy in that court. The second principle is that if one of the courts having such concurrent jurisdiction happens to be a superior court to which an appeal lies from the other court of concurrent jurisdiction, then the superior court should not normally entertain such a petition after a similar petition on the same facts has already been filed.
The judges expressed their reservations about how the Supreme Court's original jurisdiction was invoked in the present matter. They stated that the court's jurisdiction should be exercised sparingly and that it should not be used to satisfy the whims of one person. They also pointed out that the court's reputation could be damaged if its jurisdiction is exercised frequently and incautiously.
The dissenting note has sparked a debate about the power of the Chief Justice and the Supreme Court's reliance on the "one-man show" model. Some legal experts have suggested that the dissenting note is a sign of the growing dissatisfaction among judges with the power of the Chief Justice and how the court is run.
They argue that the Supreme Court needs to move towards a more democratic decision-making model, where all members' consensus is required before a decision is made. This would help to ensure that decisions are made more carefully and that the court's reputation is protected.
Others, however, have argued that the dissenting note is an attempt to undermine the authority of the Chief Justice.