Constitution of Benches in the Supreme Court: A Judicial Prerogative

“The term ‘master of roster’ cannot be understood to mean that the HCJ has unfettered discretion regarding constitution of Benches. In fact, the discretion vested in the office of the HCJ for constitution of Benches is to be exercised in a structured manner according to the SCR.”

– Manzoor Ahmad Malik J [PLD 2021 Supreme Court 639].

The history of Order XI of the Supreme Court Rules, 1980 is long and checkered. It has been used to oust the presence of judges of the Supreme Court of Pakistan in matters of public importance due to their judicious ability to dissent. This analysis is, therefore, necessitated for the legal community to question whether one person, i.e. the Chief Justice of Pakistan, should have the absolute power to decide the composition of benches of the Supreme Court and if so, whether such absolute discretion is violative of the fundamental rights guaranteed in the Constitution of Pakistan, 1973.

Historically, the case of the late Mr. Zulfiqar Ali Bhutto exemplifies an inimitable use of discretion in constituting benches of the Supreme Court. Mr. Bhutto’s appeal against the death penalty was being heard by a nine-member bench of the Supreme Court. On 7 May, 1978 Mr. Bhutto filed an application requesting that Chief Justice (CJ) Anwarul Haq not preside in his appeal as Mr. Bhutto did not have confidence in him due to several reasons. The main reason, however, was that the Chief Justice had partaken in the validation of the martial law imposed by General Zia-ul Haq. The application was not fixed before the nine-member bench that was hearing Mr. Bhutto’s appeal, rather the matter was decided in chambers solely by CJ Anwarul Haq in the judgment titled Zulfiqar Ali Bhutto v. The State (PLD 1978 Supreme Court 125). CJ Anwarul Haq decided his own fate in his own favour by declaring his competency to adjudicate Mr. Bhutto’s appeal and held the following:

The appellant not only wants me not to sit on this Bench, but also wants me to refrain from nominating the Judges for hearing this case. Under the Constitution and the law regulating the practice of the Supreme Court, it is not only the privilege but the duty and obligation of the Chief Justice to personally preside over all important cases, and to nominate Judges for hearing cases which come up before the Court. No person has the right to ask me to abdicate this responsibility, nor has he the right to demand a Bench of his own choice. This would be contrary to the well‑established norms regulation the functioning of the superior Courts of this country. Any objection, if raised, must be left to be decided according to my conscience and sense of duty in the light of all the surrounding circumstances of the case, including any possible repercussions on the capacity of my other colleagues to continue on the Bench if similar objections are raised against some of them as the appeal proceeds.

[Emphasis added].

The saga did not end here. In fact, during the proceedings, one judge retired and Justice Waheeduddin Ahmad fell ill. Waheenduddin Ahmad J wrote a letter to the Supreme Court stating the following:

I cannot join the Court for four or six weeks. If you can wait for me till then, then it is alright otherwise you can form a new Bench and dispose of the case.

The judgment of Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 38) reduced the bench to seven judges and held that such reduction did not amount to the reconstitution of the bench. Mr. Bhutto also made another unsuccessful attempt to receive the audience of a full court in the case Zulfiqar Ali Bhutto v. The State (PLD 1979 Supreme Court 427). The final judgment in Mr. Bhutto’s murder appeal has not been applauded with bravado and, perhaps, if the Chief Justice’s discretion had been purposively interpreted, Mr. Bhutto’s fate may have been very different.

The case of the late Air Marshal (retired) Asghar Khan in 1979 under Martial Law Order 12 is another example. The veteran’s detention was challenged before the Supreme Court under Article 183(4) of the Constitution of Pakistan, 1973. In the proceedings, an objection regarding the constitution of the bench was raised by the veteran’s counsel on the basis that all six judges adjudicating the matter belonged to the province of Punjab. The objection was dismissed in the judgment of Hamid Sarfraz v. Federation of Pakistan (PLD 1979 Supreme Court 991) on the basis that,

“…it is the undisputed privilege and duty of the Chief Justice, whether of a High Court or of the Supreme Court, to constitute Benches for the hearing and disposal of cases coming before his Court…

[Emphasis added].

In 1997, Chief Justice Sajjad Ali Shah interpreted Order XI in the same historic manner as his predecessors. During the adjudication of two references by the President of Pakistan, a question regarding the interpretation of Article 48 of the Constitution required deeper appreciation (notwithstanding that Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324) was in the field). The matter was initially being heard by a five-member bench of the Supreme Court. The Attorney General filed an application requesting that the matter be heard by the full court. The Attorney General’s application was not fixed before the original five-member bench. Instead, the application was decided only by CJ Sajjad Ali Shah in the judgment of Re: In References No.1 and 2 of 1996 (PLD 1997 Supreme Court 80). CJ Sajjad Ali Shah blatantly followed the precedents in the cases of Mr. Bhutto and Air Marshal Asghar Khan and also went on to hold that the power to constitute benches under Order XI would remain with the Chief Justice and that Order XXXIII, Rule 6 of the Supreme Court Rules, requiring the Supreme Court to use inherent powers to make orders to meet the ends of justice or prevent the abuse of process of the court, would not be attracted.

Soon after, CJ Sajjad Ali Shah was himself troubled by Order XI in the case of Malik Asad Ali v. Federation of Pakistan (PLD 1998 Supreme Court 161). On 26 November, 1997 the Quetta Registry of the Supreme Court restrained CJ Sajjad Ali Shah from performing judicial and administrative functions. The federal government had not appointed an acting Chief Justice, therefore, the Peshawar Registry of the Supreme Court required the senior puisne judge of the Supreme Court to constitute a full court to adjudicate the challenge to the appointment of Mr. Sajjad Ali Shah as the Chief Justice of Pakistan. The senior puisne judge declined to perform the function of constituting a full court for personal reasons, thus, the Peshawar Registry of the Supreme Court directed a junior judge, namely Saeeduzzman Siddiqui J, to constitute a bench of ten judges, which he did. The constitution of a full court by a junior judge under Order XI was later held to be constitutional by the full court, even though it emphasized that, “…the function of constitution of Benches of this Court to hear the cases is the prerogative of the Chief Justice of Pakistan.Malik Asad’s case offered a purposive interpretation of Order XI of the Supreme Court Rules, which remains unique and limited to its circumstances.

In 2002, a five-member bench of the Supreme Court decided the case of Supreme Court Bar Association v. Federation of Pakistan (PLD 2002 Supreme Court 939) regarding the appointment of three judges of the Supreme Court. The judgment reaffirmed the principles laid down in the earlier cases and the “prerogative” of the Chief Justice to constitute benches. Importantly, the Supreme Court did not follow the judgment of Malik Asad Ali’s case and sought to differentiate it on factual grounds. In several other judgments namely, Mir Alam Gul v. Ismail (PLD 1990 Supreme Court 926), Muhammad Siddiqui v. Government of Pakistan (PLD 2005 Supreme Court 186), Malik Muhammad Mumtaz Qadri v. State (PLD 2016 Supreme Court 146) and Shahzada Aslam v. Muhammad Akram (PLD 2017 Supreme Court 142), the Supreme Court reaffirmed that, “The constitution of Benches of this Court is the sole privilege and prerogative of the Hon’ble Chief Justice of Pakistan envisaged under Order XI of the Supreme Court Rules, 1980…” and that a party to the case had no say in this regard.

Contemporary examples relating to Order XI mostly involve Justice Qazi Faez Isa of the Supreme Court of Pakistan. The first example is when Isa J challenged the reference against him to the Supreme Judicial Council by filing a petition under Article 184(3) of the Constitution. The matter was heard by a ten-member bench of the Supreme Court, out of which seven-members authored a majority judgment. Isa J filed a review against the original judgment which, for reasons best known to the Chief Justice, was fixed before the seven-members who authored the majority judgment. This attempt was challenged by Isa J who filed an application for the reconstitution of the review bench. The Chief Justice, unlike his predecessors who had decided their own respective causes in chambers, placed Isa J’s application before a six-member bench (because one of the judges had retired) for adjudication.

The judgment in Qazi Faez Isa v. Federation of Pakistan (PLD 2021 Supreme Court 639) is, perhaps, the first half-hearted attempt to clip the Chief Justice of his unbridled power to constitute benches. The judgment held the following:

“…the constitution of review Benches (or any Bench) is the sole prerogative of the HCJ under Order XI …[but] in constituting a review Bench, the HCJ should ensure substantial compliance with Rule 8 of Order XXVI by including the author Judge (if available) in the review Bench…”

[Emphasis added].

It was further held that,

“…the numerical strength of a review Bench has to be the same as that of the original Bench, regardless of whether the judgment under review was passed unanimously or by majority.

The judgment also held the following:

As a matter of law and settled practice it is for the HCJ, as the master of the roster, to determine the composition of a Bench.”  

[Emphasis added].

Justice Manzoor Ahmad Malik disagreed with the term “master of the roaster” and, in his additional note, concluded the following:

“…the term ‘master of roster’…cannot be understood to mean that the HCJ has unfettered discretion regarding constitution of Benches. In fact, the discretion vested in the office of the HCJ for constitution of Benches is to be exercised in a structured manner according to the SCR.”

Accordingly, ISA J’s review was heard by the same number of judges who passed the original judgment.

The second example is where Isa J was adjudicating the case of Action Against Distribution of Development Funds to MNAs/MPAs By Prime Minister (PLD 2021 Supreme Court 446) with Justice Maqbool Baqir. The two judges requested Chief Justice Gulzar Ahmed to constitute a larger bench, which the Chief Justice did, but, in doing so, excluded Maqbool Baqir J from the bench without any plausible reason. Isa J, in his dissenting note, contested the display of absolute discretion by the Chief Justice and objected to the reconstitution of the bench, relying on various precedents of the Supreme Court (including the case of Pakistan v. Abdul Wali Khan (PLD 1976 Supreme Court 57)) to substantiate that a judge hearing a particular matter could not be excluded from the bench unless he had retired or been incapacitated.

More recently, the incumbent Chief Justice took suo moto action in Suo Motu Regarding Holding of General Elections to the Provincial Assemblies of Punjab and Khyber Pakhtunkhwa and constituted a nine-member bench to adjudicate the matter. The bench was reconstituted after the very first hearing because several judges had objected to the manner in which the incumbent Chief Justice had assumed jurisdiction and exercised his discretion. In particular, Justice Mansoor Ali Shah (who still presides over the bench) objected to the constitution of the nine-member bench to the exclusion of the two senior most judges of the Supreme Court in the following terms:

The Hon’ble Chief Justice has been pleased to observe in his order invoking the original jurisdiction of this Court under Article 184(3) of the Constitution suo motu, in categorical terms that “These matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.” But, in spite of the said observation, the two senior most Hon’ble Judges of this Court have not been made part of this Bench to hear and decide upon the matters of “great public importance”, for reasons not expressed in the order constituting the present Bench.

The final judgment in this matter will better guide us regarding Order XI of the Supreme Court Rules.

There are other, numerous unreported examples where benches have been constituted or reconstituted by various Chief Justices to control the dissent of judges in matters of public importance. However, the above examples clearly establish that the manner in which Order XI has been used is against the norms of a democratic society that is governed by a written constitution. Therefore, one person should not have the absolute discretion to constitute benches in relation to all matters requiring judicial interpretation. This power should be structured in a manner that is subject to restrictions and plausible reasoning, otherwise we will not be able to rectify the mistakes of our unfortunate judicial history.

The absolute discretion of a Chief Justice to decide the fate of any judicial matter has, in practice, offered an unbridled display of discretion and evidenced the abuse of process. This is a violation of Article 10A of the Constitution which ensures the right to a fair trial and due process. For the past five decades, every faction of society has advocated that the late Zulfiqar Ali Bhutto had been deprived of his right to a fair trial and that the constitution of benches had been one of the key factors in giving birth to the term “judicial murder”. Similarly, the abuse of due process has been glaringly visible in the cases pertaining to CJ Sajjad Ali Shah and Qazi Faez Esa J, also reflecting a violation of Article 10A as well as Article 4 of the Constitution under which the right to be dealt in accordance with the law is an inalienable right. This, in the author’s view, is adequate to conclude that Order XI, as it currently stands, may be ultra vires to the Constitution.

The Supreme Court Rules are sub-constitutional legislation, therefore, they cannot override any constitutional provisions, including Article 10A of the Constitution, let alone violate the Constitution. The Supreme Court has held in numerous judgments that Article 10A of the Constitution has an overarching effect on each sub-constitutional legislation and should be impliedly read into every statute.

In the author’s view, there are several options as a way forward. The Supreme Court should:

  • reassemble under Article 191 of the Constitution to amend Order XI of the Supreme Court Rules by introducing structure, mechanism and reasonable restrictions; or
  • constitute a full court to offer a purposive interpretation of Order XI; or
  • declare Order XI of the Supreme Court Rules to be ultra vires to the Constitution.

On balance, and given that the exercise of Article 191 of the Constitution is unlikely to be foreseeable in the reasonable future, the second option i.e. to constitute a full court to offer a purposive interpretation of Order XI, appears to be plausible. The eminent law lords of the Supreme Court should purposively interpret Order XI of the Supreme Court Rules and establish guidelines to display structural discretion and reasoning in constituting the benches of the Supreme Court and, where necessary, impose reasonable restrictions on the unbridled discretion to constitute benches. It is extremely important to establish a judicial structure at the earliest so that fair trail and due process can be ensured and the judicial system comes out of the perils of efficacy. The author hopes, in the best interests of the institution, that the judges of the Supreme Court will consider the humble request of this legal professional.

The views expressed in this article are those of the author and do not necessarily represent the views of or any other organization with which he might be associated.

Hassan Raza

Author: Hassan Raza

The writer is an Advocate of the High Court and Senior Associate at Orr, Dignam & Co, representing the firm’s clients in Punjab, Islamabad and Khyber Pakhtunkhwa in commercial litigation and ADR in commercial disputes. He is also a Member of the Young International Arbitration Group (YIAG), the Young International Council for Commercial Arbitration (YICCA) and ASA Swiss Arbitration Association.

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