Two SC judges recuse from hearing ECP pleas

Updated September 20, 2019

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Two days after two judges of the Supreme Court recused themselves from hearing pleas challenging a presidential reference against Justice Qazi Faez Isa, two more judges on Thursday withdrew themselves from a three-judge SC bench that took up a petition moved by two sitting members of the Election Commission of Pakistan (ECP).  — AFP/File
Two days after two judges of the Supreme Court recused themselves from hearing pleas challenging a presidential reference against Justice Qazi Faez Isa, two more judges on Thursday withdrew themselves from a three-judge SC bench that took up a petition moved by two sitting members of the Election Commission of Pakistan (ECP). — AFP/File

ISLAMABAD: Two days after two judges of the Supreme Court recused themselves from hearing pleas challenging a presidential reference against Justice Qazi Faez Isa, two more judges on Thursday withdrew themselves from a three-judge SC bench that took up a petition moved by two sitting members of the Election Commission of Pakistan (ECP).

When the case pertaining to transfer of challenges to their appointment to the Islamabad High Court from different high courts was taken up for hearing by the SC bench, Justice Manzoor Malik and Justice Sardar Tariq Masood expressed their inability to hear the matter and recused themselves from the bench.

Consequently, Justice Maqbool Baqar, who was heading the bench, referred the matter to the chief justice for constitution of a different bench.

On Tuesday, Justice Tariq Masood and Justice Ijaz-ul-Ahsan had announced that they would not sit on the seven-judge SC bench hearing the Justice Faez Isa case.

The petition was filed by retired Justice Altaf Ibrahim Qureshi and retired Justice Irshad Qasier — the ECP members from Punjab and Khyber Pakhtunkhwa, respectively.

Their appointments were challenged by two little-known political parties in the Sindh High Court and Lahore High Court on the grounds that none of them had completed a two-year constitutional bar after their retirement as judges under Article 207(2) of the Constitution.

Article 207 (2) states that a person who has held office as judge of the Supreme Court or of a high court will not hold any office of profit in the service of Pakistan, not being a judicial or quasi-judicial office or the office of CEC or of chairman or member of a law commission or of chairman or member of the Council of Islamic Ideology before the expiration of two years after he has ceased to hold that office.

The cases are still pending before the two high courts.

The ECP members in their petition contended that the challenges to their appointments in two different high courts were incompetent, not maintainable and coram non judice since they held their offices in Islamabad within the territorial jurisdiction of the IHC. Therefore, they pleaded, the Supreme Court should order transferring their cases to the IHC since the writ of quo warranto could only be issued by the high court in the territorial jurisdiction of which the person held the public office.

The petitioners named the Aam Log Ittehad and its chairman Wajihuddin Ahmed, the Saraikistan Democratic Party and its chairman Rana Mohammad Fraz Noon, the ECP, former judge of the Balochistan High Court retired Justice Shakeel Ahmed Baloch and ECP member Abdul Ghaffar as respondents.

The ECP members argued that the petitions against them were not maintainable on multiple counts, adding that the manner and process during the course of hearing in the SHC were such that the normal procedure was dispensed with under alleged pressure and influence of Wajihuddin Ahmed, a former judge of the Supreme Court, causing grave miscarriage of justice.

The respondents were also attempting to harass the ECP members for personal vendetta when they performed their duties and acted in accordance with the law while dealing with their case, they alleged.

Moreover, they argued, the multiplicity of proceedings before different courts might result in conflicting judgements on the issue, compounding their agony, adding that multiple litigations before the high courts, which lacked jurisdiction in the matter, were adversely affecting the smooth function of the ECP members.

“Needless to submit that the petitioners are the two members with the chief election commissioner presently working in the ECP,” the petition said, adding that multiple litigations challenging their offices before different high courts were otherwise improper.

Published in Dawn, September 20th, 2019