THE country`s superior judiciary remains in a bind. Ever since an eight-member bench led by the chief justice acted prematurely to ensure that the Supreme Court (Practice and Procedure) Act would be a stillborn law, several senior justices have, on different occasions, been less than enthusiastic about hearing major cases till questions regarding the constitutionality of the aforementioned law are firmly decided. The issue arose again during the Friday hearing of a petition challenging the changes made last year by the PDM government to the country`s anti-corruption laws. Justice Mansoor Ali Shah, who is part of the three-member bench that has been hearing the long-running case, proposed the formation of a full-court bench to hear the matter, noting that since the SC had not yet issued a final judgement on the Practice and Procedure law, it may be best to refer the matter to a larger bench keeping in mind the implications of the case.

It may be recalled that, through the Practice and Procedure Act, the PDM government had sought to take suo motu powers and the prerogative to form benches away from the chief justice and hand them to a committee comprising the three senior-most judges of the apex court. Parts of the Practice and Procedure Act also made their way into the later Supreme Court (Review of Judgements and Orders) Act, which the SC struck down last week. At one point in the ruling striking down the latter law, the chief justice observed that `it would veer towards irrationality to hold` that the legislature could supersede the CJP and enact a law taking away his prerogative to exercise and invoke jurisdiction under Article 184(3). This would seem to suggest that the Practice and Procedure Act may meet a similar fate. However, the bench hearing the case seems caught in a Catch-22 situation, with a decision either for or against the law complicated by the apex court`s internal divisions.

The Practice and Procedure Act may never have become an albatross around the SC`s neck had the chief justice addressed the differences within his court early and in an amicable manner. He was asked repeatedly by his fellow judges to devise rules regulating suo motu and bench-fixing powers but refused to relinquish control over them. When the PDM government moved to capitalise on these divisions for its own ends, he failed to rally support from within the institution behind him, to the judiciary`s general detriment. However, it is never too late to learn from past mistakes. The chief justice still has a month till his retirement. He must spend it tying up loose ends. Much time has been lost and grass trampled on in this fight between elephants. He must put it to rest.