The Supreme Court is once again the subject of headlines. This time, judicial history was made in the form of a 27-page, detailed ruling issued by Justices Syed Mansoor Ali Shah and Jamal Khan Mandokhail of the Supreme Court. The ruling, which claims to be ‘the’ judgement in the PTI’s petition regarding the delay in the Punjab and Khyber Pakhtunkhwa elections, states that the two honourable justices agree with the decisions of Justice Yahya Afridi and Justice Athar Minallah, who had questioned the intent of the suo motu and urged the formation of a full bench in the Supreme Court. “We believed 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, had become the order of the court by a majority of 4-3, while our other three learned brothers held the view that their order was the order of the court by a majority of 3.” The justices have also stated that they are “”fortified” by the precedent of the well-known Panama case, which they believe. The first order of the court in the aforementioned case was issued by a 3-2 majority “. According to the justices, the current constitutional petitions should be dismissed, and the suo motu proceedings should be halted.
It may be recalled that, in a 3-2 split decision a few weeks ago, the Supreme Court’s larger bench stated that elections in both Punjab and KP should be held within 90 days. At the time, the PDM government argued that because it was essentially a seven-member bench rather than a five-member bench that eventually delivered the final verdict, even after two judges recused themselves, the petition had been rejected 4-3. The PDM will no doubt feel vindicated in its interpretation of the SC verdict now that Justice Shah and Justice Mandokhail’s orders have been issued. The decision essentially opens up a new debate about whether the 3-2 split decision stands. The PTI maintains that yesterday’s order was a “minority judgement” and should be treated as such.
Perhaps more importantly, all of this points to a larger issue: the perception, now quite justified, that there is a split in the superior judiciary on some larger issues. “We find it essential to underline that in order to strengthen our institution and ensure public trust and confidence in our court, it is high time that we revisit the power of the ‘one-man show’ enjoyed by the office of the chief justice of Pakistan,” both justices wrote in yesterday’s order. While this is not the first time concerns have been raised about bench-fixing or the formation of benches at the discretion of the CJP – or even the CJ’s powers in the appointment of judges – what this order has done is document this in the form of a written order signed by no less than peer judges. Legal experts have suggested that the chief justice’s discretionary powers should be reconsidered, or at the very least revisited. With fellow judges asking the same questions, one wonders how long judicial reforms can be delayed, especially since bench formation has become a contentious issue. According to most accounts, it may be in the best interests of the court if the current constitutional issues are addressed by a full bench so that our honourable apex court is not embroiled in any further controversy. This, as well as judicial reforms affecting the highest office in the highest court of the land, are now unavoidable.