Currently, the Practice and Procedure Bill is once again the subject of controversy. The government has amended the bill through an ordinance. Previously, under the original bill, a committee was formed in the Supreme Court, comprising the Chief Justice and the two most senior judges. However, the amendment now allows the Chief Justice to appoint the third member of the committee at their discretion, while retaining the senior judge as a committee member.
It is important to note that the primary function of this committee is to schedule cases in the Supreme Court and decide which bench will hear which case. This committee also determines which judge will be on which bench.
We must not forget why the Practice and Procedure Bill was introduced in the first place. The parliament passed this bill because there was significant outcry during Chief Justice Umar Ata Bandial’s tenure about a single bench hearing most of the cases. Senior judges of the Supreme Court were being excluded from important cases. It was often said that only five judges, often referred to as the “like-minded bench,” were handling most of the cases, and there was a perception that this bench was biased towards the Pakistan Tehreek-e-Insaf (PTI) party.
Many decisions from this bench were seen as favorable to PTI, which led to protests from both political parties and senior judges who complained about not being assigned any cases. Some of the bench’s decisions were even criticized for going beyond the constitution, equating them to rewriting the constitution itself.
In such an environment, it was felt that the Chief Justice had dictatorial powers in forming benches and was not bound to consult anyone. There was no platform for raising concerns, which led to the proposal for a committee of senior judges to consult on forming benches and scheduling cases.
After parliament passed the bill, it was suspended by Chief Justice Umar Ata Bandial before it was even notified, in a unique event in Pakistan’s judicial history. The law was never enacted during Bandial’s tenure, as he kept it suspended without further hearings.
When Justice Qazi Faez Isa became Chief Justice, he immediately formed a full court to hear the case regarding this law, and the hearings were broadcast live. The full court voted in favor of the law, and the committee began its work. Although Chief Justice Qazi Faez Isa could have kept the law suspended, he chose to relinquish his sole authority in forming benches and delegated it to the committee.
It is important to note that the parliament’s intention was never to completely eliminate the Chief Justice’s role in forming benches, but rather to make the process more transparent and include consultation. Initially, the committee worked well, but after the government started discussing judicial reforms, divisions within the committee began to surface, affecting its work.
It became evident that the two committee members effectively sidelined the Chief Justice from the process of forming benches. The Chief Justice became a passive figure, and the two junior members of the committee started controlling the Supreme Court’s functioning. They formed all the benches according to their own will, with no input from the Chief Justice, who was reduced to a minority member with no significant role. If this situation were to continue, the very status of the Chief Justice would be undermined. The dignity of the Chief Justice’s office must be preserved. We cannot render the Chief Justice powerless.
In response to this situation, an ordinance was issued, granting the Chief Justice the authority to appoint the third member of the committee. Chief Justice Qazi Faez Isa promptly exercised this authority by appointing a third member of his choosing to the committee. Now, Justice Mansoor Ali Shah and Justice Muneeb Akhtar are raising objections. It is noteworthy that Justice Muneeb Akhtar has opposed this committee from the very beginning.
Justice Akhtar had voted against the formation of the committee during the full court hearing, opposing any reduction in the Chief Justice’s authority to form benches. However, after being removed from the committee by Chief Justice Qazi Faez Isa, Justice Akhtar has now refused to be part of any bench. Justice Mansoor Ali Shah has also lodged his protest.
Parliament and the government are seeking a balance in the consultation process for forming benches. Granting complete authority to the Chief Justice creates problems, but completely removing the Chief Justice from the process also creates issues.
The judiciary has been unable to strike a balance within this committee. Internal conflicts within the judiciary often spoil good initiatives. It is often said that the problem lies not in the law itself but in the way it is implemented. This is the case here as well. The committee was not intended to make the Chief Justice’s opinion irrelevant, nor was it meant to give the Chief Justice full authority. The balance lies somewhere in between, but it is not being observed.