Imagine a system under which the U.S. Supreme Court hears cases as panels consisting of three to five Justices rather than as a full court of nine. Suppose that the Chief Justice makes a five-Justice panel consisting of himself, Justice Samuel Alito, Justice Clarence Thomas, Justice Sonia Sotomayor, and Justice Elena Kagan to hear abortion cases. Suppose the abortion decisions coming out of the panel are split 3-2, with Justices Sotomayor and Kagan dissenting. Most U.S. lawyers knowledgeable about the history and past decisions of the Justices will see that the panel is skewed against the constitutionality of abortion. Annoyed with the split decisions, suppose the Chief Justice makes a panel of only three Justice consisting of himself, Justice Alito, and Justice Thomas, to hear any future abortion cases. On this, the legal profession, regardless of how the lawyers view abortion, will rise in disgust and indeed conclude that the Chief Justice is undermining the Court’s credibility through panel-fixing.
Something like this has occurred in Pakistan, causing a revolt among prominent political parties and lawyers.
The Pakistan Supreme Court consists of 17 judges as a full court. A full court sits only in matters of constitutional gravity and other national interests where the wisdom of all judges is needed. Most run-of-the-mill cases are heard in two-judge to three-judge panels (benches). Cases requiring constitutional interpretations may be assigned to a bench of five to eight judges.
Compare the Pakistan Supreme Court with the U.S. courts of appeals, which also decide most cases in panels of three judges, though in some cases, the court may sit en banc. However, in the appeals courts, the cases are randomly assigned to various judges. The judges, including the Chief Judge, play no role in panel assignments.
In Pakistan, the Chief Justice has the exclusive authority to make benches. This judicial power to assign judges creates the perception that the Chief Justice might be manipulating the Court to generate desired outcomes.
This unique power to set up benches further muddles perceptions because, unlike in the U.S., there is no political question doctrine in Pakistan. Consequently, all sorts of political issues land directly before the Supreme Court. Assigning judges to resolve controversial political questions makes it hard for the Supreme Court to please all parties who prefer different decisions.
Recently, for example, a great controversy has erupted over Article 63A of the 1973 Constitution, a provision that punishes legislators who defect their political parties in critical electoral decisions, including the election and removal of a prime minister (PM) or a provincial chief minister (CM). See JURIST commentary.
In Reference by the President case, requesting the Supreme Court to explain the implications of defection, Chief Justice Umar Bandial established a five-judge bench, including himself, to decide whether, under Article 63A, the votes of defecting legislators are counted in removing or electing a PM/CM. The Chief Justice and two other Justices decided that the defectors’ votes shall not be counted even though they can be de-seated from the legislature for casting a vote contrary to the party directions.
The five-judge bench gave a 3-2 split decision, though no opinion has yet been released. (In Pakistan, decisions are released long before the opinions laying out the grounds for the decision). A dissenting justice, wrote his dissent before retiring, and accused the majority of rewriting the 63 A and would have allowed the counting of defectors’ votes.
The majority decision was highly controversial. Various bar associations criticized the decision and have petitioned the Court to review its judgment. The controversy deepened with the CM election in Punjab.
On July 22, an election took place to elect the chief minister of Punjab, Pakistan’s largest province, constituting 65% of the nation’s population. Ten legislators of the Pakistan Muslin League (PMLQ) voted for Pervez Elahi, a CM candidate who polled a total of 186 votes. The rival CM candidate, Hamza Sharif, polled 179 votes. The speaker of the Punjab legislature refused to count the ten PMLQ votes, citing a letter from the PMLQ Party Head, who had instructed the party legislators to vote for Sharif, not Elahi. Consequently, the speaker declared Sharif, with 179 votes, the chief minister.
Elahi, the losing candidate, filed a petition with the Pakistan Supreme Court to challenge the speaker’s ruling. The critical question in the case was whether the Party Head enjoys the constitutional authority to issue the direction, triggering defection. As per widespread practice, the seasoned lawyers asked to give opinions on the issue in the electronic media had differing opinions.
The formation of the bench is as important as resolving the controversy. In the Elahi case, the Chief Justice made a three-judge bench, including himself and the two judges who agreed with him in the Reference by the President case, thus getting rid of any possible dissent. (Since then, one dissenting judge has retired, and the other was not recruited to the bench).
The government, consisting of numerous political parties, requested that a full court should hear the Elahi case as defection under Article 63A has far-reaching political consequences. However, the Chief Justice rejected the idea of expanding the bench.
After a two-day hearing, the three-judge bench decided that the parliamentary party rather than the Party Head has the authority to issue directions. Therefore, the ten legislators voting for Elahi had not defected, and their votes must be counted. Accordingly, the Court removed CM Sharif.
A political storm is brewing against the Chief Justice for “bench-fixing.” Even though the three judges are highly qualified on constitutional matters and their reasoning in prior constitutional cases has been excellent, supported with defensible, though somewhat inconsistent, textual reading of the constitution.
Unfortunately, the Chief Justice has undermined the Court’s credibility by creating a perception that the judges are engaged in political engineering, as the same three judges out of 17 whom the Chief Justice selects are at the forefront in deciding a majority of politically controversial issues.
No court can please all litigants, much less political parties with conflicting interests. However, the perception of “bench-fixing” was easily avoidable if the Chief Justice had expanded the panel to include more, if not all, judges. The Chief Justice should consider devising a system under which judges are assigned to benches at random. Unfortunately, even a random bench assignment is prone to unsatisfactory outcomes. A better solution requires that a full court resolve politically charged constitutional controversies.
Ali Khan is the founder of Legal Scholar Academy and an Emeritus Professor of Law at the Washburn University School of Law in Topeka, Kansas. He has written numerous scholarly articles and commentaries on constitutional law. In addition, he has regularly contributed to JURIST since 2001. He welcomes comments at firstname.lastname@example.org