Internal friction over the top judge's "self-assumed" authority and a "revolt" by the most senior justices of the Supreme Court against their own chief judge has brought Pakistan to the brink of a clash between the judiciary and the legislative branch.

Legal experts say that if the judges' disagreements aren't worked out by forming a full court bench, the country will end up in a judicial crisis that will add to the economic and political problems the unity government led by Prime Minister Shehbaz Sharif is already facing. 

Fly in the ointment

Since the current Chief Justice, Umer Ata Bandial took charge of his office in early 2022, senior justices, notably puisne Court Justice Faez Issa, have been sidelined in favor of a coterie of like-minded judges who routinely appear on all the politically significant cases.

The senior judges do not see eye to eye with the Chief Justice about his "egoistic" privilege to put together benches for the most important political cases without taking them on board. The aggrieved judges believe that taking suo motu notice under Article 184(3) of the Pakistan Constitution is not a prerogative of the chief justice, who ought to consult the senior brother judges before taking such an action.

When Justice Qazi Faez Isa questioned the power of the Chief Justice of Pakistan last month, the judges' disagreements came to a head. The bar associations, including the Pakistan Bar Council, were worried about the situation and did not like how the most senior judges were left off of special or larger benches hearing high-profile cases.

Essa put a big question mark on the legitimacy of special benches set up under Article 184(3) during the hearing of a suo motu session in Islamabad, saying that doing so would cause "doubts" and make the Supreme Court vulnerable to "criticism." He asked if the Supreme Court Rules even allowed for separate benches to be made. "Where is the idea behind this particular bench?" he inquired. Legal experts start debating whether or not there has been a wind of change in the apex court following the remarks of Justice Issa, who questions the veracity of constituting benches at the will of the country's top judge.

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Rift gets intensified

The issue went from bad to worse when the lawmakers jumped into the fray in support of a likeminded group of the apex court following a three-member special bench on March 29 decided with a vote of 2 to 1 that all actions under Article 184 (3) would be put on hold until the Supreme Court Rules 1980, which deal with the Chief Justice of Pakistan's discretionary power to create benches, were revised.

To add insult to injury, the Pakistani parliament passed legislation last month that makes significant modifications to the statute governing the Chief Justice's conduct and restricts his discretion in taking suo motu notices and creating hearing benches. After a 3 member bench of the apex court headed by Justice Qazi Faez Isa suspended the suo motu proceedings, the National Assembly enacted the Supreme Court (Practice and Procedure) Bill 2023, which aims to "clip powers" of the Chief Justice of Pakistan to take suo moto notice in a personal capacity.

The bill states that the Chief Justice of Pakistan and the two most senior justices, in order of seniority, should sit on a bench to hear and consider any case, appeal, or other issues before the Supreme Court.

It also says that any issue involving Article 184, paragraph 3, must first be brought to the committee for review. If the committee decides that the case involves the enforcement of one or more fundamental rights, it must put together a bench of at least three supreme court judges, which may also include members of the committee.

According to the proposed law, an appeal must be filed within 30 days of the date a Supreme Court bench with jurisdiction over the bigger bench makes its final decision, and it must be looked at within a maximum of 14 days. Also, it lets each side choose its own lawyer when asking for a review. 

Recusals from the bench

Midway through February, the Chief Justice of Pakistan, Umar Ata Bandial, took note of the delay in holding elections in Punjab and Khyber-Pakhtunkhwa, where the assemblies had been dissolved by their respective chief ministers. The election process, which should have been done within 90 days of the date of dissolution, is still stuck because the parties disagree about the electoral law. The chief justice created a larger bench of Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandikhail, Justice Muhammad Ali Mazhar, and Justice Athar Minallah to decide the case.

But two of the judges, Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi, stepped down from the bench because the people involved had strong concerns about their conduct. Justice Yahya Afridi and Justice Athar Minallah also left because they had already "made and announced their final decision of dismissing the constitutional petitions and the suo motu proceedings on February 23 and had in their order left it to the Hon'ble Chief Justice to decide if they were required to sit through the remaining proceedings."

To decide on the suo moto case, the chief justice had to put together a new bench of the five remaining judges. After hearing arguments for two days, the bench split 3 to 2 and told President Arif Alvi to set the date for the Punjab Assembly election. The Khyber-Pakhtunkhwa governor would set the date for the provincial assembly election after consulting with the Election Commission of Pakistan.

The government did not give the Election Commission enough money or security to conduct elections on the proposed date of April 30. The matter went back to the Supreme Court, which created a new five-member bench to fix the problems with holding elections in Punjab and Khyber Pakhtunkhwa. On its first hearing on March 31, Justice Aminuddin said that since he supported a judgment against the suo motu power of the chief justice of Pakistan, he was therefore recused from the bench. When the bench resumed hearing on the same date, Justice Jamal Khan Mandikhail also excluded himself from the bench, saying that the suo motu case regarding the Punjab and K-P elections date announcement was already dismissed by a majority of four judges out of seven.

Now the three-member bench will hear the petition on Monday, while the government is adamant about not accepting the verdict because this suo motu case has already been dismissed by 4 out of 7 judges.