New SC bench to hear elections' case on Friday after judge recusal

New SC bench to hear elections' case on Friday after judge recusal


During Wednesday's hearing, two judges were at odds over suo motu verdict

ISLAMABAD (Dunya News) – A new bench of the Supreme Court will hear the elections' case on Friday, it was decided.   

The five-member bench of the Supreme Court of Pakistan hearing a case regarding delay in elections in Punjab and Khyber Pakhtunkhwa was dissolved on Thursday after Justice Aminuddin Khan rescused himself from the bench. 

Originally, a bench headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan and Justice Jamal Khan Mandokhail, was hearing the petition filed by the Pakistan Tehreek-e-Insaf (PTI). 

As today’s hearing was resumed, CJP Bandial said Justice Khan wanted to say something. Later, Justice Khan said he could not be part of the bench after his yesterday’s verdict regarding suo motu cases.

He was part of the three-member bench which on Wednesday ordered suspending proceedings on ongoing suo motu notices until rules for the procedure were made. The bench, headed by Justice Qazi Faez Isa, had issued the verdict on a suo motu notice taken on awarding 20 extra marks to Hafiz-e-Quran in the MBBS/BDS admissions. The verdict had been issued with 2-1 majority as Justice Shahid Waheed wrote a dissenting note, stating the verdict was issued on matters that were not raised before the court.

According to the ruling, the Constitution does not grant unilateral and arbitrary power to the chief justice to list cases for hearing and form special benches by picking judges.

“The Constitution does not grant to the Chief Justice unilateral and arbitrary power to decide the above matters. With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution. Collective determination by the Chief Justice and the Judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice,” reads the ruling.

“The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution,” it added.

The top court will now resume hearing the elections case after costitution of the new bench. 

Former prime minister Imran Khan’s party had challenged the Election Commission of Pakistan's (ECP) order to put off the Punjab polls till Oct 8. The electoral body had cited security and financial constraints as reasons to defer the elections.

In a concurrent development, the federal government on Wednesday approved the Supreme Court (Practice and Procedure) Bill 2023 in the National Assembly, clipping powers of chief justice of Pakistan. 

The March 1 verdict of the top court came under debate during Wednesday's hearing as Justice Mandokhal and Justice Munib Akhtar came at odds over validity of the ruling.

Wednesday’s Hearing 

At the outset of Wednesday's hearing, Justice Mandokhail maintained that the top court had dismissed the suo motu case regarding elections with 4-3 majority. He said the majority of the judges did not give an order for elections. “How did the Election Commission hold consultation for elections and how did the president announce the date for polls where there was no order of court?” inquired Justice Mandokhail. He added, “Supreme Court’s order of the court was decision of the four judges”.

CJP Bandial remarked: “You have given your response”. Justice Mandokhail replied he wanted to add more, adding that he stuck to his dissenting note in the suo motu case.

At one point, PPP’s lawyer Farooq H. Naek said the full bench should be made to hear the case, adding that the top court should first end ambiguity on the suo motu case’s verdict and decide “whether its 4-3 or 3-2”.

Read More: Top court adjourns hearings on ongoing suo motu notices

In reply to Justice Mandokhail’s remarks, ECP lawyer Sajeel Swati said the electoral body had implemented the apex court’s March 1 ruling. “Election Commission approached the president after the court order and then president announced April 30 as poll date,” he said. The apex court’s ruling was issued with 3-2 majority as there were signatures of the five judges on the verdict, he said.

“Had you read the short order in the suo motu case?” Justice Mandokhail questioned. To which, the ECP lawyer replied: “We might have misunderstood it”.

At this point, Mr Naek against requested the court to form a full bench to defuse the situation. CJP Bandial remarked:

“You must submit a written application in this regard”.

Minority’s Decision Cannot Prevail Over Majority’s Ruling

Justice Munib Akhtar asked the ECP lawyer if there was mentioned in the short order that it was a 4-3 verdict. To which, Mr Swati said that was why the ECP implemented the order for holding the elections.

Justice Akhtar clarified that the Justice Mansoor Ali Shah and Justice Mandokhail haid not mentioned in the March 1 dissenting notes that it was a verdict by 4-3 majority.

“Both the judges are respected, but the minority decision cannot prevail over the majority decision. The law is clear in this regard that the minority decision has no importance. The decision of Justice Mansoor and Justice Mandokhail is a minority decision,” Justice Akhar added.

'Need to Cool Down Political Temperatures'

CJP Bandial remarked the top court wanted to promote the political process, adding: “No one want delay in elections but there is need to cool down the political temperatures for polls”. It would not possible to go into elections with such political hype, the top judge remarked.

“I had asked political leadership to give assurance that political tolerance will be observed but no political party came forward,” the chief justice remarked.

At which, PTI lawyer Ali Zafar said he was ready to submit an undertaking on the behalf party chairman Imran Khan.
The top judge remarked that elections could be put off in the areas of Punjab and Khyber Pakhtunkhwa where law and order situation was vulnerable. “Delaying the elections in both province is beyond the understanding,” he remarked.

“Tell me, what’s so fascinating about Oct 8 date?” the judge asked. At which, the ECP lawyer said the decision to put off the elections was made after review the reports of relevant agencies.

So it means ECP can extend the date for elections, the top judge inquired. CJP Bandial remarked the court would hear advocate generals of Punjab and KP and “it can hear some other persons if there is a need”.