The Chief Justice: Part Chief And Part Judge
It is clear that the Supreme Court is a seminal player in the politico legal system of the country, and its actions (and inactions) have a fundamental impact on how the country is governed.
Interestingly though, while the Supreme Court has a total of seventeen judges, most of the cases fixed before the Supreme Court are heard by benches that typically only have three judges. The number of judges on the bench hearing a case may further increase depending on the perceived importance of such case.
Different judges may reach different decisions based on their political leanings and background as the interpretation of law is not a completely objective exercise. An example of this can be found in the case pertaining to the constitutionality of the military courts that was heard by all seventeen judges. The judges could not agree on a single judgment, and there are TEN different judgments in that case that articulate the decision of the Supreme Court.
Stereotypinga judge based on his background and past decisions naturally does not fully capture the complexity of what goes on in such judge’s mind when deciding a case. It undoubtedly provides a useful predictive tool for how a judge is going to decide a certain case.
The fact that the judges on the Supreme Court have discernable judicial attitudes- becomes of crucial importance- when considered with the fact that identity of the judges who will hear a certain case is not randomly decided but rather determined by the Chief Justice.
The power of the Chief Justice to put any number of judges on the bench to hear a case, the facts of which he is already aware of, theoretically gives him substantial control over the judicial direction of the Supreme Court.
An example of the immense importance of the Chief Justice in deciding the judicial direction of the Supreme Court can be garnered from the fact that the frequency with which the Supreme Court exercises its suo motto jurisdiction has historically been heavily dependent on the individual proclivities of the Chief Justice in office.
This power of the Chief Justice of the Supreme Court (the Chief Justices of the High Courts have a similar power) to constitute benches is problematic for several reasons.
While the decisions of the Supreme Court are final and can be appealed before no higher legal authority, the judges making these decisions are unelected (and can only be removed by their fellow judges). Concentrating such immense power in the hands of unelected judges can only be justified if, among other thing, the importance of consistency in judicial decisions and of law being predictable is considered. Elected representatives, beholden to their voters, will do whatever gets them votes and consistency is not one of their virtues. Judges on the other hand, are not constrained by any electoral considerations. However, this logic breaks down if the Supreme Court, with every new Chief Justice, becomes beholden to the legacy considerations of the current Chief Justice.
Secondly, it is no secret that considering the importance of the decisions that the Supreme Court makes, various entities, both private and public, have an enormous incentive to try and influence the decisions and the workings of the Supreme Court. If only one individual has an outsized role in making these decisions for the institution, the entire working of the institution, and its independence, becomes more vulnerable because one individual may be easier to influence than seventeen individuals.
Furthermore, while the courts have repeatedly emphasized the importance of safeguarding the independence of judiciary, the focus has always been on preserving judicial independence against intrusion by external institutions. Judges however may also feel pressurized, and their independence during the decision making process may also be compromised, if they feel that they can be punished by the Chief Justice when their decision goes against his expectations; such punishment may take the form of the delinquent judge being taken off from all benches hearing important cases and being assigned menial work. Intra-judicial independence therefore also needs to be preserved along with inter-judicial independence.
A recent example arguably highlighting this concern was when Justice Qazi Faeez Isa was abruptly taken off a three bench hearing a case by the then Chief Justice Saqib Nisar. While Justice Mansoor Ali Shah did assert in his order that even the Chief Justice does not have the power to break a bench after it has been formed, the issue is yet to be conclusively decided.
Bizarrely, the Constitution of Pakistan does not contain any mention of the Supreme Court acting through benches or that the benches will be constituted by the Chief Justice in his sole discretion. The Constitution however entitles the Supreme Court to frame rules regulating its practice and procedure, and the fact that the Chief Justice decides who sits on any bench is due to the content of such rules
The federal supreme courts of other prominent common law jurisdictions like the U.K, Australia and the U.S do not function via benches, and all the judges sit together to hear every case that has been admitted for hearing.
It can be argued that the Supreme Court deciding the cases through benches is a logistical inevitability keeping in view the high number of cases brought before the Supreme Court. However, this explanation should perhaps be taken with a pinch of salt. Decades of neglect of the lower judiciary has resulted in the need for superior courts to review almost every decision of the lower court for errors. In the U.S by contrast, enough investment has been made in the lower courts. The supreme court does not need to hear every case brought before it, and only hears those cases which raise some new issues of law that need to be conclusively settled.
In Pakistan by contrast, at least part of the judicial strategy to deal with the poor conditions of the lower courts has been to expand the scope of the original jurisdiction of the superior judiciary (by virtue of which these courts become courts of first instance that hear the case for the first time as opposed to hearing appeals). This results in a substantial increase in the work load of the superior judiciary while naturally reducing the quality of the decisions.
It may be time for the Supreme Court to introspect whether a more transparent mechanism can be instituted for the constitution of benches. The answer may be random allocation, or something more sophisticated. However, what is not in doubt is that the workings of the Supreme Court are too important a matter, and too great a burden, to be left in the sole discretion of just one individual.