Senior puisne judge Justice Mansoor Ali Shah on Monday refused to attend a meeting of the Supreme Court’s Practice and Procedure Committee after raising concerns over the legality of the Supreme Court (Practice and Procedure) Amendment Ordinance enacted last week.
In a letter addressed to the secretary of the committee, Shah noted that a full court bench of the Supreme Court had determined that Article 191 of the Constitution vested the “initial and primary” power to make rules for regulating practice and procedure for itself with the Supreme Court and the original act had “facilitated access to justice, instilled transparency, made the realization of fundamental rights more effective, and the Supreme Court more independent.”
Additionally, he noted, the full court had “closed the door” to any future parliamentary “encroachment” on the independence of the court by declaring it would “deal with the same” as the “custodian of the Constitution.”
Raising questions over the validity of the ordinance, he noted it vested with the Chief Justice of Pakistan “unfettered and arbitrary discretion” powers to determine the composition of the committee. He also pointed to the “current constitutional crises,” hinting at the infighting within the judiciary that has come to the fore in recent weeks, saying “judicial determination” was merited as there appeared no urgency in promulgating the ordinance.
The newly amended law grants additional powers to the chief justice to nominate any judge as a member of a committee, if a member of the committee is absent. The ordinance also gave the CJP authority to assign cases and required explanations for any case taken up out of turn.
Noting that within hours of the ordinance’s promulgation, Justice Shah wrote the judges’ committee was reconstituted, with Justice Munib Akhtar replaced by Justice Aminud Din Khan. He maintained no reasons were given for Akhtar’s removal. “Furthermore, no reasons were given why the next senior most judge was ignored and instead, the fourth senior most judge was nominated as a member of the Committee,” he wrote.
“Such unfortunate cherry picking and undemocratic display of one-man show are precisely what the Act tried to discourage and replace-a stance that was upheld by the Full Court Bench of this Court in Raja Amer,” he added.
He also emphasized importance of collegial decision-making within the judiciary, stressing this was essential for “ensuring justice, fairness, and the larger good of the people who seek its intervention.” Concentrating administrative powers in the hands of the CJP, he said, ran counter to the ideals of democratic governance and judicial fairness.
The senior puisne judge called for a full court meeting to review the ordinance. “Independence, transparency, and collegiality required the Chief Justice to raise an immediate alarm and concern on the promulgation of the amending Ordinance in the light of the Court’s celebrated pronouncement in Raja Amer,” he wrote, warning any decisions made by the reconstituted committee could undermine the court’s credibility and violate the Full Court Bench’s decision in Raja Amer case.
“Until the constitutional validity of the amendments made by the amending Ordinance is determined by the Full Court Bench of this Court, or the judges of this Court resolve to act upon the amendments in a Full Court meeting on the administrative side, I, with respect, regret that I cannot participate in the meetings of the Committee,” the judge concluded.