“Political people want favorable decisions, not justice.” With this assertion of the Honorable Chief Justice of Pakistan comes a crunch question to fore: is there a way out of this quandary we are in?
Amongst few simmering qualms of our justice system has been the constitution of benches. Legal fraternity and politicians are justifiedfeeling hard done by. When the bench formation decides fate of the case, the justice system walks the plank.
Instead of pulling the wool over eyes, we must give this discretion stuff a miss as it cannot take precedence over prudence and enactment.
Admittedly HCJ is the Master of Roster and Order XI of the Supreme Court Rules 1980 empowers the HCJ to constitute a bench. However pertinent to mention here is the fact that this power is not unbridled. Order XI of the Supreme Court Rules 1980 cannot override the requirements provided under Article 10 A of the Constitution as the Supreme Court Rules are subordinate to the Constitution.
Same has been held by the Supreme Court that “The term ‘master of roster’ cannot be understood to mean that the HCJ has unfettered discretion regarding constitution of Benches” [PLD 2021 Supreme Court 639].
For a profound understanding of the matter let’s have a read about the bench formation in top political cases in the recent past.
* On Friday this month, a petition regarding elections throughout the country on the same day is heard by a three-member bench comprising Mr. Chief Justice Umar Atta Bandial, Mr. Justice Ijaz-ul-Ahsan and Mr. Justice Muneeb Akhtar.
* In April 2023, an eight-judge larger bench was constituted to hear petitions against the Supreme Court (Practice and Procedure) Bill, 2023. The bench comprised Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha Malik, Justice Hasan Azhar Rizvi and Justice Shahid Waheed.
* On April 4 , 2023, Supreme Court restored the Election schedule , declaring that the decision of Election Commission to delay Election in Punjab was unconstitutional. The three-member bench was comprisd of Chief Justice Umar Atta Bandial, Justice Ijaz-ul-Ahsan and Justice Muneeb Akhtar.
* In February , HCJ took suo notice regarding elections in dissolved assemblies. The bench comprised Mr. Chief Justice Umar Atta Bandial, Justice Ijaz ul 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.
* In May 2022, the Supreme Court decided that votes of defecting lawmakers would not be counted. The bench comprised Mr. Chief Justice Umar Atta Bandial, Justice Ijaz Ul Ahsan and Justice Muneeb, Justice Mazhar Alam Mian and Justice Jamal Mandokhail. Pertinent to mention here is the fact that Justice Mazhar Alam Mian and Justice Jamal Mandokhail were dissenting judges.
* In May 2022, the Supreme Court ordered the govt to allow the PTI to organize its march and rally. The bench comprised Justice Ijaz ul Ahsan, Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi.
* In April, 2022, the Supreme Court restored National assembly and ordered no-confidence vote to be held on a certain day. The bench comprised Chief Justice Umar Atta Bandial, Justice Ijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Mazhar Alam Mian Khel and Justice Jamal Mandokhail.
* In December, 2018 the Supreme Court, in dual citizenship case , allowed Sayed Zulfikar Bukhari to serve as special assistant to prime minister. The bench comprised Justice Saqib Nisar, Justice Umar Atta Bandial and Justice Ijazul Ahsan .
* Who has the power to take suo notice? A bench was constituted two years ago to determine this issue. It comprised Justice Umar Atta Bandial, Justice Ijaz Ul Ahsan, Justice Muneeb Akhtar, Justice Ali Mazhar and Justice Amin Ahmed.
* Justice Saqib Nisar, Justice Umar Atta Bandial and Justice Faisal Arab heard the issue of regularizing Imran Khan’s house in Bani Gala.
* Nawaz Shaarif was disqualified I Panama Case. The bench comprised Justice Asif Saeed Khosa, Justice Gulzar Ahmed, Justice Ejaz Afzal, Justice Azmat Saeed, and Justice Ejaz Ul Ahsan.
* In 2018, the Supreme Court ruled that disqualification under Article 62 (1)(f) of the Constitution is for life. The bench comprised Justice Saqib Nisar, Justice Umar Atta Bandial, Justice Ejaz Ul Ahsan, Justice Azmat Saeed and Justice Sajjad Ali Shah.
* The question of eligibility as party chief was heard by Justice Saqib Nisar, Justice Umar Atta Bandial and Justice Ijazul Ahsan.
There is little to suggest things would be improved sans culling and regularizing these unbridled, discretionary powers of HCJ to constitute the bench.
We are on a steep slope and we are hurtling down. Inflexible egos are not ready to swallow their pride. Hopes are dying in the prime. Democracy and constitutionalism, both are being decomposed and the stench is eviscerating our jurisprudence.
If a larger bench had been constituted, the situation would have been different. Now we are in abyss and no one knows how to steer out of it.
–The writer is a lawyer and author. He teaches Law at Quaid-i-Azam University, Islamabad. He tweets @m_asifmahmood