CJP Bandial gives another chance to govt, opposition to hold dialogue to end impasse

CJP Bandial gives another chance to govt, opposition to hold dialogue to end impasse


During Thursday's hearing, Justice Aminuddin Khan recused himself from hearing the case

ISLAMABAD (Dunya News) – The Supreme Court of Pakistan on Friday summoned secretaries of interior and finance on April 3 (Monday) as it turned down a government’s plea for constitution of a larger bench to hear the PTI petition regarding delay in elections in Punjab and Khyber Pakhtunkhwa. 

A truncated bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Ijazul Ahsan, heard the petition after Justice Jamal Khan Mandokhail recused himself from the case earlier in the day, disbanding the four-judge bench.

During the hearing, the top judge remarked that the proceedings could be halted temporarily if the government and the opposition engaged in dialogue. “We will play our constitutional role if dialogue is not held,” he said, adding: "Constitutions is the spirit of the democracy". 

The judges of the apex court were being targetted, the chief justice lamented. "We are showing tolerance but we will look into this matter".  "What I have done till today is aligned with Constitution," he maintained. 

At one point, the chief justice said he would hold some important meeting after the hearing and remarked that there would be new dawn of hope on Monday.

Attorney General Usman Mansoor's arguments 

When Attorney General Usman Mansoor Awan again pleaded the court to form a full bench to hear the case, the CJP remarked certain factors had to be reviewed before constituting the full bench as sometimes there were issues regarding availability of the all judges. “We also don’t want to affect the proceedings of other cases pending with the apex court,” he said. 

The attorney general also told the SC that Pakistan was facing a deficit of billions of rupees and it was difficult to go for elections in these trying times. He came up with the argument on why the finance ministry had refused to provide funds to the ECP for elections. He also claimed that the interest rate was expected to rise to 22 per cent, which would further increase the country’s debt.

Justice Mandokhail's Recusal

The four-member bench of the Supreme Court of Pakistan was dissolved after Justice Jamal Khan Mandokhail excused himself from hearing the case. 

The new bench comprising Chief Justice Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar and Justice Jamal Khan Mandokhail was constituted after the five-member bench was disbanded on Thursday following the recusal of Justice Aminuddin Khan. 

The announcement came as the four judges reached court to resume hearing of the case filed by former prime minister Imran Khan’s party against 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 his dissenting note, Justice Mandokhail said yesterday’s order “was not dictated in the court nor was I consulted by the HCJ. However impact of the judgement requires consideration in court.” As the order was passed without his consultation, therefore, he is misfit in the bench, the judge remarked.

During the hearing, CJP Bandial remarked that Justice Mandokhail agreed to become part of the bench till yesterday. He said a new bench would be formed to hear the case.

When Justice Mandokhail was expressing his views, the top judge interrupted him and left the court room, followed by other member of the bench.

The apex court staff said the hearing in the case would resume at 2pm. 

Rejection of Justice Faez Isa-led bench 

Eariler, the chief justice set aside the observations made by a three-member bench of the apex court regarding powers of taking suo motu notices and constitution of special benches. 

SC Registrar Ishrat Ali issued a circular in this regard after a bench comprising Justice Qazi Qazi Faez Isa, Justice Aminuddin Khan and Justice Shahid Waheed issued a majority verdict of 2-1, ordering 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 enjoyed by the Chief Justice of Pakistan to form benches.

The three-judge bench issued the ruling in a suo motu case regarding the grant of 20 marks to Hafiz-e-Quran while seeking admission to MBBS/BDS degree. Justice Waheed wrote a dissenting note against the order, saying the points raised and discussed in the order were not relevant to the case.

Thursday's Hearing

As Thursday’s hearing was resumed, CJP Bandial said Justice Khan wanted to say something. Later, Justice Khan announced 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.

Following the recusal, the hearing of the case was adjourned for Friday.

The March 1 verdict of the top court came under debate during Wednesday's hearing as Justice Mandokhail 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”.