ISLAMABAD: Justice Syed Mansoor Ali Shah, senior puisne judge of the Supreme Court, objected to the changes made to the Supreme Court (Practice and Procedure) through an ordinance.
In a three-page letter, written to reconstituted committee on Monday, the judge criticised both the substance of the amendments and the process by which they were implemented.
The federal government on 20th September enacted the Supreme Court (Practice and Procedure) Amendment Ordinance, 2024, introducing a few changes in the Act 2023, particularly, in Section 2(1) under that a three-member judges committee of the apex court decides on the formation of the SC benches and cases related to human rights.
Justice Mansoor leaves for US to attend seminar
Earlier, the committee comprised chief justice and two senior-most judges of the Supreme Court. But the ordinance now allowed the chief justice to nominate one member of the committee, from time to time.
Soon after the promulgation of the ordinance on amendments in the Practice and Procedure Act 2023, CJP Faez reconstituted a committee, wherein, Justice Aminuddin Khan has been included as a third member by ousting Justice Munib Akhtar. Justice Aminuddin Khan is the fifth most senior judge of the SC. Interestingly, Justice Yahya Afridi, who is the fourth most senior, has not been included in the committee.
Justice Mansoor began by expressing alarm at the hasty reconstitution of the Practice and Procedure Committee, which took place just hours after the amending ordinance was promulgated. He highlighted the lack of transparency in the removal of Justice Munib Akhtar from the committee, stating, “No reasons were given as to why the second senior-most judge, Justice Munib Akhtar, was removed from the composition of the Committee, who had been attending all the meetings since March 11, 2024, and was available for attending today’s (Monday) meeting.”
The justice further criticised the arbitrary inclusion of a less senior judge in the committee, describing it as “unfortunate cherry-picking” that undermines democratic principles. “This selective inclusion of committee members reflects an undemocratic and one-man show approach, precisely what the Act aimed to discourage and replace,” Justice Mansoor noted, referencing the Supreme Court’s previous stance against such practices.
He underscored the importance of collegial decision-making within the judiciary, a principle that he argued has been compromised by the recent changes. “The principle of collegial working stands as a cornerstone for ensuring justice, fairness, and the larger good of the people who seek its intervention. The concentration of ultimate administrative powers in the hands of a single individual, such as the Chief Justice, runs counter to the ideals of democratic governance and judicial fairness,” he wrote, citing the Supreme Court’s own ruling in the Raja Amer case.
The senior puisne judge also questioned the necessity of the ordinance’s promulgation without parliamentary debate, suggesting it lacked the urgency required for such a measure. “The constitutional conditionality of the very act of promulgating the amending Ordinance also requires judicial determination as no urgency has been spelled out that necessitated its promulgation, instead of a proper amending enactment through the Act of Parliament,” Justice Shah pointed out.
He called for a full court meeting to review the ordinance, stating, “Independence, transparency, and collegiality required the Hon’ble 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 warned that any decisions made by the reconstituted committee could undermine the court’s credibility and violate the Full Court Bench’s decision.
Justice Mansoor concluded by reaffirming his commitment to judicial independence, saying, “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 letter highlights significant internal tensions within the judiciary, with Justice Mansoor’s pointed criticisms raising important questions about the balance of power within Pakistan’s highest court. His insistence on adhering to principles of transparency and collegiality underscores the ongoing struggle to maintain judicial independence in the face of political and administrative pressures.
Copyright Business Recorder, 2024