Election delay case: SC turns down govt’s request to form full court

ISLAMABAD: The newly constituted three-member bench of the Supreme Court on Friday rejected the government’s request to form a full court on the Punjab and Khyber Pakhtunkhwa election delay case. 

A three-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, comprising Justice Ijaz Ul Ahsan and Justice Munib Akhtar, rejected the request put forward by Attorney General for Pakistan Mansoor Usman Awan on behalf of the government. 

The initial five-member bench comprising CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Amin-Ud-Din Khan, and Justice Jamal Khan Mandokhail was formed to hear the case. It held three hearings on the matter from Monday till Wednesday. 

The three-member bench was formed today after two of the five judges of the original five-member larger bench recused themselves. 

Justice Khan was the first member to recuse himself which led to the dissolution of the bench. 

On Wednesday, an SC bench headed by Justice Qazi Faez Isa ordered the postponement of cases being heard under Article 184(3) of the Constitution till the amendments made in the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches.

Justice Khan concurred with Justice Isa while Justice Shahid Waheed dissented with the majority order of 2-1 in the suo motu case regarding the grant of 20 marks to Hafiz-e-Quran students while seeking admission to MBBS/BDS Degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018.

Consequently, on Thursday the bench hearing the election case was dissolved following Justice Khan’s recusal in line with Justice Isa’s order.

After the dissolution of the bench, the apex court announced that the bench would continue hearing the case without Justice Khan.

When the court met today, Justice Mandokhail also recused himself from hearing the case. 

Disregarding of judgment 

But before the election case hearing was set to resume, the Supreme Court “disregarded” the judgment authored by Justice Isa through a circular issued by SC Registrar Ishrat Ali.

“The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction,” observed CJP Umar Ata Bandial in the circular issued today.

It noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.

“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment therefore disregards binding law laid down by a larger bench of the Court,” read the circular. 

The recusal 

When the bench assembled today, AGP Awan came on the rostrum to speak but CJP Bandial told him that Justice Mandokhail wanted to say something.

The judge, while recusing himself from hearing the case, remarked that he was awaiting the order after Justice Khan’s recusal from the case.

“I received the order at home. I had written a separate note on the order,” said Justice Mandokhail. He then asked AGP Awan to read out his note.

After the AGP read out the note written in the order, Justice Mandokhail remarked that he was a member of the bench but he was not consulted while the order was being written.

“I believe I am a misfit in the bench. I pray whichever bench is formed in this case gives a verdict that is acceptable to everyone,” said Justice Mandokhail. He prayed for his institution, adding that he and his fellow judges were bound to follow the Constitution.

“I wanted to say something yesterday as well, perhaps there was no need for advice from me while writing the judgment,” noted Justice Mandokhail. He added that the other three members of the bench did not find him “worthy” of giving advice.

After this, Justice Mandokhail tried speaking but was stopped by the CJP. He instead thanked the judge for his note.

“Whatever decision is made on the formation of the bench will be announced in the court in a while,” remarked CJP Bandial.

Later, the court announced that a three-member bench will resume the hearing at 2pm. 

Pakistan Bar Council seeks full court

After the hearing resumed, Pakistan Bar Council Executive Committee Chairman Hassan Raza Pasha came to the rostrum to speak up and urged the court to form a full bench on the case.

However, CJP Bandial said that they will hear the bar later.

But Pasha stated that the bar was not in support or against anyone. He added that if a full-court bench could not be made then a full-court conference should be summoned.

“We are thinking about this,” said CJP. He added that the relations between the judges were fine.

The top judge also stated that the media at times would also say things which were not true.

“I will hold some meetings after the hearing. It is expected that Monday’s sun will rise with good news,” remarked the CJP.

At this point, AGP Awan came to the rostrum and CJP Bandial asked him to speak.

The government’s top lawyer requested the court to let the political temperature tone down, adding that it needed to be done all over the country.

The CJP asked the AGP what he had done regarding the directives to tone down the political temperature.

“Only time is needed. [Political] temperature can only decrease down with time,” said AGP Awan.

CJP Bandial observed that the 90-day limit for holding elections in Punjab and Khyber Pakhtunkhwa was ending in April. He added that the president gave the date for elections after the 90-day limit ended.

“If the president had an idea about the situation then he would not have given the April 30 date,” said the CJP. He added that the issue before the court was the date of October 8.

“The court did not sit to create problems. Tell the court a solid reason or start a dialogue,” said the CJP. He added that one party chairman was giving assurances, saying that the government will have to forget the past.

“The assembly’s time was ending in August and if there are talks between the government the opposition then they will take a break for some days,” said the CJP. He added that if the dialogue is not held then they will play their constitutional role.

“After seeing the court decision, you will say that it is an independent decision. Each side’s points will be mentioned in the decision,” said the CJP. He then asked the AGP about the court’s directives of reducing expenses.

The CJP also added that he was asked to reconstitute the bench, adding that if he wanted he could have changed all the judges.

“If you want to do that, that would be an invasion of our privacy,” said the CJP.

The AGP then interjected and stated that the CJP had stated that the judges did not recuse themselves from the hearing.

“I did not say anything about judges’ recusal,” clarified the CJP.

“We judges will discuss the matter of stopping the hearing,” said the CJP. He then added that the internal discussions of judges should not be done in public.

He then directed the AGP to argue on decreasing the political temperature, adding that they will resolve these issues soon.

AGP again urges for full court

Meanwhile, AGP Awan then requested the formation of a full court bench to hear the case.

Once the AGP made the request, the CJP gave him the go-ahead to argue about it.

“Full court issue was on my mind; however, before forming the full court, it is necessary to look at some factors,” said the CJP. He added that one factor was that routine cases are not affected as the number of cases was rising daily.

The CJP also explained that at times judges were not in the same city as they were visiting the registries of the apex court in other cities.

“While forming the nine-member bench, I thought that all the judges from senior to new should be represented,” said CJP Bandial. He then talked about members of the initial nine-member bench formed to hear the Punjab and Khyber Pakhtunkhwa election case.

He also added that the full court case dealt with Justice Qazi Faez Isa’s reference from 2019-2021 and it had to face repercussions for it.

The CJP said that he found Justice Athar Minallah to be in line with the Constitution and Justice Mansoor Ali Shah, Justice Yahya Afridi, and Justice Munib Akhtar were constitutional experts. Justice Ahsan is also an expert on the Constitution, he added.

‘Silent message’

“You may ask why Justice Sayyed Mazahar Ali Akbar Naqvi was included in the nine-member bench,” said CJP.

At this, the AGP said, “if the CJP wishes to talk about it then he may do so”.

“Added Justice Mazahar Naqvi [to bench] to send a silent message to someone,” said the CJP.

‘Judges targeted on hearsay’

CJP Bandial then went on to say that a political case was ongoing which was why the judges were being targeted. He added that judges were being targeted based on hearsay.

“Supreme Court was united and is still so on some matters,” said CJP Bandial and added, “No one sees how the judiciary is affected”.

“I am being asked to punish one more judge. First go and evaluate those facts,” said CJP Bandial.

The CJP also added that judges were being targeted based on audio leaks.

“If you talk about the law, I will listen as a judge. If you talk about my judges, then you will have to face me,” said CJP Bandial.

The CJP also added that judges were being targeted based on audio leaks.

“If you talk about the law, I will listen as a judge. If you talk about my judges, then you will have to face me,” said CJP Bandial.

Meanwhile, AGP told the court that he would finish his arguments soon. But on this ECP’s lawyer, Irfan Qadir intervened and said that his client’s point of view was not heard.

However, the CJP asked Qadir to let the AGP complete his arguments.

“I only want to speak for three minutes. I have to sit for hours if you can get emotional then I can too,” said Qadir.