'One-man show': Is Parliament's move to curtail the CJP's powers justified?

The National Assembly passed on Wednesday the Supreme Court (Practice and Procedure), Bill 2023, aiming to deprive the office of the Chief Justice of Pakistan (CJP) of powers to take suo motu notice and constitute benches in an individual capacity.

The legislation was introduced in Parliament a day earlier against the backdrop of cases concerning the suo motu proceedings initiated by the CJP for the holding of general elections in Punjab and KP and a hard-hitting dissenting note by two justices of the Supreme Court, Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail.

*Read more: Opinion split in legal fraternity after bill clipping CJP's powers tabled in NA*

In their detailed reasoning, the two judges called for 'revisit[ing] the power of one-man show enjoyed by the office of the Chief Justice of Pakistan', holding that the 'court cannot be dependent on the solitary decision of one man, the Chief Justice, but must be regulated through a rule-based system...'

The justices did not hold back: 'The power of doing a one-man show is not only anachronistic, outdated and obsolete but also is antithetical to good governance and incompatible to modern democratic norms.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.'

The strongly worded, thinly veiled criticism of the 'one-man show' by the justices for their 'own brother' is unprecedented in the judicial history of Pakistan, except perhaps the treatment meted out to former CJP Sajjad Ali Shah by brother justices in the late 1990s.

In their written detailed order, Justice Mansoor and Justice Mandokhail have taken exception over the manner in which the CJP had reconstituted the original nine-member bench to a five-member bench, when he did not pass a specific order to exclude the two justices who had announced their final decision to dismiss the suo motu proceedings and had left their fate of retention in the bench to the CJP.

In their dissenting note, Justices Mansoor and Mandokhail also questioned how the two judges, who had given their final decision, could be excluded from the bench when no order for their removal was made by the CJP.

The govt moves in

As explained above, a day after Justice Mansoor and Justice Mandokhail released their detailed dissenting note, the ruling coalition introduced the Bill on the subject, titled Supreme Court (Practice and Procedure) Bill, 2023 in Parliament for consideration.

The presentation of the Bill was accompanied by very critical speeches and the passing of an unprecedented resolution in the National Assembly that deemed the judiciary's 'unreasonable interference in political matters the cause of political instability'. The resolution further called for 'the matters requiring collective wisdom and in which a request for a full court bench of the Supreme Court to be heard by the full-court.'

The Bill was passed by the National Assembly the very next day (Wednesday) and is expected to receive the nod from the Upper House of Parliament soon.

Besides the constitution of benches, which has been the key source of contention among the legal fraternity in recent days, the issue is further complicated by the extraordinary original jurisdiction conferred upon the Supreme Court by the Constitution. It is under this jurisdiction that suo motu cases and constitutional petitions are taken up by the Supreme Court.

Practically, this means that the CJP may take up any issue of interest to him, fix it for hearing before a bench of his choosing, which almost always is the bench headed by himself...

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