Two ‘brother judges’ of the apex court terming the current CJP’s role a ‘one-man power show’ displays immense disharmony within the Supreme Court. The 28-page order, authored by Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail, not only casts doubt over the validity of the 3-2 judgment by the Supreme Court ordering timely elections in Punjab and KP but also calls for rationalising unbridled powers of the CJP. At the core of this order, that seemingly had no effect on ongoing proceedings over the delay in elections announced by the ECP, is the matter of the CJP’s limitless prerogative to take suo motu notices. While Justice Bandial pales in comparison to his predecessors in terms of abusing the absolute powers of the position of the CJP, he has not shied away from taking a leaf or two from their books. The ability for a CJP to take a suo motu is an assumed right, dating back to the early 90s; it is not envisaged in the constitution. The country’s top judicial official’s unquestionable prerogative to begin proceedings on a matter only he, without any stipulation of consultation or approval deems of the utmost importance, cannot possibly be free of persuasion by personal interest, motivation and bias. The federal cabinet, yesterday, approving a bill aiming to curb this power is therefore a welcome step as it is necessary to finally introduce some oversight, restriction and sanity in such matters.
Formation of SC benches, another contentious matter, is also an operative part of the judgment in question. Justice Qazi Faez Isa, the next CJP, has perhaps been the most vocal on this matter, and rightly so. The CJP’s sweeping powers in this regard too are unjust and must be reined in. In the absence of, at minimum, a random system or perhaps expertise-based selection of judges on particular benches, the prevailing narrative that one can ‘predict the judgment from a bench just by looking at its members’ will not go away. And this is a dangerous territory to be in if the goal is to dispense timely, fair and noncontroversial justice that is not adulterated by influence from external forces and temporarily institutionalized biases.
It remains to be seen what changes Monday’s order brings. Going by the damp and hollow history of judicial reform lead by those in positions of power, reserved optimism is the best approach.
Increasing infighting and a continued penetration into the executive and parliament’s constitutionally allocated space is likely to persist and further diminish the credibility and reliability of the SC.
