Justice Mansoor Ali Shah still most senior judge: attorney general

ISLAMABAD: Superseded senior-most judge of the Supreme Court Justice Mansoor Ali Shah will remain on the Practice and Procedure Committee and will also be part of the Judicial Commission Pakistan (JCP), says the attorney general.

Responding to a query on whether Justice Shah would still be considered puisne judge despite having been superseded, Attorney General of Pakistan Mansoor Usman Awan told The News that Justice Shah would still be considered the most senior judge: “He will be on the SC Practice and Procedure Committee as well as in the Judicial Commission of Pakistan (JCP).”

The debate surfaced after Justice Shah was not made CJP, leading to the question of whether he would now be regarded as the senior-most judge or if the slot would be captured by the judge number four (senior most after new CJP Yahya Afridi).

Per the Supreme Court (Practice and Procedure) Ordinance, bench-making and case-fixing is to be done through a three-member committee. Now that would include a senior-most judge who has been superseded by his junior.

This situation has developed since the third most senior judge has been appointed the CJP. The debate was whether it now be appropriate under the rules to add the senior-most judge in the committee after he has been ignored as the CJP.

Moreover, the scope of the committee will also now be limited following the making of a permanent constitutional bench for constitutional matters. All such cases will automatically be referred to this particular bench without any role of the committee. Will the presiding officer of the constitutional bench be part of the committee to discuss the fixing of the constitutional cases according to their timing and priority?

The SC Practice and Procedure Act says that the sitting chief justice and the top two senior most judges would work like a committee to decide the formation of benches and fixation of cases as per priority. Later, a few weeks ago, through an amendment ordinance in September a change was made saying the panel would comprise the CJP, the senior-most judge and a third member could be any judge nominated by the CJP.

Legal experts talked to The News about this situation. Senior advocate Hafiz Ahsaan Ahmed Khokhar said that: “The superseded judge(s) cannot be considered senior most judge/puisne judge(s). Now, Justice Aminuddin, senior most after the CJP will be puisne judge. Superseded judges cannot be part of the committee to decide the fixing of cases”.

According to him, the committee under the Practice and Procedure Act will function only for cases other than constitutional ones. Constitutional cases would directly be taken up and enlisted by the constitutional bench.

This bifurcation of cases will also create confusion and take time. The SC would likely be at standstill till the matter is resolved -- and the matter may not be resolved so easily. “Ultimately, the situation could lead to a situation where you would need a totally separate system for the constitutional bench, paving the way for a new constitutional amendment to make it a proper separate court -- a 27th Amendment”, predicted Khokhar.

The SC cannot operate smoothly after this situation and its working will be affected. “There will be a lot of confusion and chaos in re-allocation of cases and jurisdiction matters”, he feared.

Qazi Anwar, former president of Supreme Court Bar Association, however observed that though Justice Shah “has not been picked for the CJP slot, he is still the senior-most judge and should be the part of the committee under the new Practice and Procedure Act Amendment Ordinance”. However, the new list on the SC website regarding the list of judges would further explain this.

He said that at present there is only chaos and technically the SC and the high courts will remain sort of “suspended” until clarity is gained. “This is why the government has created chaos and gained time delaying important constitutional matters pending before the apex and higher courts”, he alleged.