f you go to the impressive Court Room Number One in the Supreme Court, there are large portraits of former chief justices hanging on the wall behind the place where the judges are seated. It is as if these renowned men (we are yet to have a woman chief justice) are glancing at the court they once headed and observing its proceedings. These days, they would find a court that is bitterly divided. The bitterness arises not from some legal issue before the court. It arises also from the powers being exercised by the chief Justice of Pakistan. What are these powers?

Article 176 of the constitution provides that the Supreme Court shall consist of a CJP and such other judges as may be determined by an Act. The parliament has determined through legislation that the maximum number of judges of the Supreme Court other than the CJP shall be sixteen.

On the face of it, Article 176 contemplates that the Supreme Court means the full court of all such judges. The constitution does not allow the Supreme Court to delegate its powers. There is no provision in the constitution providing that the court may exercise its powers through benches of fewer judges.

The provision of the constitution which confers a specific power on the CJP is Article 182. Under Article 182, the CJP has the power to appoint ad hoc judges in consultation with the Judicial Commission. This power engages when it is not possible for want of a “quorum of judges” to hold or continue any sitting of the court or if for any other reason it is necessary to temporarily increase the number of judges. Although this article mentions a “quorum of judges,” this phrase is not defined. Absent an express definition of the term, it would appear to mean the total number of judges identified in Article 176.

Article 191 gives the court the power, subject to the law and the constitution, to make rules regulating its practice and procedure. Under this power, the court has promulgated the Supreme Court Rules, 1980.

Order XI of the rules provides for the constitution of benches. It provides that, unless otherwise provided in a law or by the rules, every cause, matter or appeal shall be heard and disposed of by a bench consisting of not less than three judges to be nominated by the CJP.

Order XI does not by its express terms give the CJP power to assign cases to benches. The power is to “nominate” judges who shall constitute a bench. In practice, cases are assigned to benches by the CJP. This power is regarded as flowing from the power to nominate judges on benches.

The rules, which the court is allowed to make under Article 191, are restricted to matters of “practice” and “procedure” of the court. Stipulating that the court can assign its work or delegate its power to a bench of some of its members nominated by the CJP, travels beyond matters of practice or procedure. It relates not to the practice or procedure to be followed by the court (which consists of all judges) but to the exercise of judicial power by certain members of the court (a bench) on behalf of the court.

The significance of the power to constitute benches and to assign cases to benches of choice has been revealed by recent events.

The general principle is that a constitutional body cannot delegate its powers. In the case of legislative power, delegation is undertaken through rules or regulations expressly contemplated by the relevant legislation. Through such delegated legislation, what is a law-making power of the legislature is transferred to the Executive. For a similar right of delegation to exist in the context of the powers of the court, a constitutional provision would be needed allowing the court to make rules pertaining to the exercise of substantive judicial powers through benches. Absent any such enabling provision, the current Supreme Court rules in so far as they relate to the constitution of the benches appear to be ultra vires the constitution and unlawful.

The significance of the power to constitute benches and to assign cases to benches of choice has been revealed by recent events. There is an impact on decisions and perceptions. The CJP does not currently provide any explanation as to why he assigns important cases to certain benches. There are no stipulated criteria for bench constitution or assignment of cases nor is there any transparency in such decisions. This undermines legitimacy and credibility. As we have seen, it leads to allegations of constitution of “like-minded” benches which casts a shadow on judges and the judicial process.

A judgement of a five-member bench of the court has held that only the CJP has the power to take suo motu notice under Article 184(3) of the constitution. This decision finds no support in the language of either the constitution or the law. In fact, Article 184(3) confers powers on the Supreme Court, not on the CJP, nor on any bench.

The parliament has recently legislated on the question of benches. The legislation, which has been rejected by the president, contemplates that benches will be constituted by a committee comprising the CJP and two most senior judges. All cases under 184(3) – whether suo motu notice has been taken or otherwise – will first be placed before this committee who will decide whether to proceed and then assign the matter to a bench of not less than three judges.

The new law does not diminish the powers of the court. It does take away the power of the CJP under the rules to constitute benches. To the extent that the rules are ultra vires the constitution, so is the new law. There is no basis on which the parliament can create a “committee” of the court. Nor can it grant such a committee or other entity the power to create benches with judicial powers, which are by the terms of the constitution vested in the court.

Rather than legislating to obtain short-term relief from a political crisis, parliamentarians should take a long-term view. The constitution should be amended to provide for the court to exercise judicial power through benches. This amendment should provide for a constitutional bench of a minimum size and defined composition to deal with important constitutional cases. The amendment should also set forth the principles that will apply in the case of bench composition and case allocation. The new law simply replaces a one-man show with a three-man show. The problem for our parliamentarians is that thanks to the same court, they have no discretion when it comes to considering constitutional amendments. They are bound to follow the directions of the parliamentary party and if they don’t, their vote won’t be counted.

The writer is an advocate of the Supreme Court. He can be reached at ahmadhosain@icloud.com