From 9 to 5: Dissent, recusals and a court full of controversy

The main order speaks of the fundamental question — who has the authority to fix the date of a provincial election? It then states that this has not been addressed.
Published February 27, 2023

The Supreme Court bench, hearing the suo motu case regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, suddenly saw its strength reduce from nine to five after four of its members “stepped away”.

The move, though not unprecedented, is certainly unique and sheds light on the internal divisions among the judges of the apex court and whether the suo motu proceedings were even justified or not. reached out to members of the legal fraternity to pick through the contents of the Feb 23 order, including the additional notes appended by the four SC judges.

Notes a must read

“It began with nine members in a bench that promised to be a change from the norm in matters concerning political events,” said lawyer Abdul Moiz Jaferii. “There were more judges here, enough to keep one guessing. Missing were two of the senior most, but at least we had a semblance of a full court.

“Then we had a hearing on February 23, the order of which has just surfaced. And what interesting reading it makes for,” said Jaferii.

The main order of the court speaks of the fundamental question — who has the authority to fix the date of a provincial election? It then goes on to state that this has not been addressed or answered.

According Jaferii, this is a clear oversight and reflects the pressure under which this court is operating, because it is exactly this question that Justice Jawad Hasan of the LHC addressed and answered in his decision that the court takes note of earlier.

The main order also speaks briefly in the end about the questions posed by two members of the bench — Justice Athar Minallah and Justice Mansoor Ali Shah — and how they relate to whether the assemblies were first dissolved illegally or not and are perhaps extraneous to the urgency at hand.

It is perhaps this dismissive intent that has led to four additional notes being appended with the order of the court — each a must read.

Leaked audios, irregular proceedings

Both Justice Mandokhail and Justice Shah highlight the irregular goings on in the SC, from the president of its bar association allegedly featuring on a leaked audio tape, as well as the other alleged leaked audio of Justice Naqvi.

Justice Mandokhail then points out that the president of the Supreme Court Bar Association is also the lawyer for the policeman, Dogar, whose proceedings were before the two member bench in the first place.

The proceedings, say Justice Mandokhail and Justice Shah, had no nexus with the date of elections but the ECP chief was inexplicably summoned by the two-member SC bench, even though he was not party to those proceedings.

Justice Mandokhail highlights that this is all irregular, and the note being sent to the CJP itself carries a pre-determination of illegality, which the CJP has only confirmed and added to. He feels the suo motu is unwarranted.

Justice Shah, meanwhile, states that with this controversy culminating in references being filed against Justice Naqvi, his inclusion on the suo motu bench is inappropriate. He goes on to stress that this is further ‘nuanced’ when we see other more senior members of the court being excluded from the bench.

‘Preemptive eagerness’

In their respective notes, Justice Yahya Afridi and Justice Athar Minallah allege that the court is showing “judicial preemptive eagerness” as the matter is pending before both the Lahore High Court and the Peshawar High Court.

While Justice Afridi admits that this is no bar to the matter being heard by the Supreme Court, he feels that the circumstances require the court to show judicial restraint and bolster the principle of propriety. Then, he rather inexplicably states that he ‘dismisses these petitions’, but leaves it to the chief justice whether to include him on the bench or not.

Justice Minallah, on the other hand, stresses that a full court must hear this suo motu, as is envisaged in the scheme of the Constitution. His order hints at no desire of recusal. He does, however, note that the court’s order “does not appear to be consistent with the proceedings and the order dictated in open court.”

In the end, we are once again left with five members and a court full of controversy. And it has not even begun.

Unfortunate series of events

Lawyer Basil Nabi Malik termed the latest series of events “utterly unfortunate”.

“Rather than bring together the court to hear a matter of constitutional and public importance, thereby imbuing in the people a sense of confidence in the process, it appears that the CJP has decided to further accentuate and cement the differences, and perceptions of differences, between the justices of the Supreme Court,” he lamented.

“It is being reported that the four judges had recused themselves, which does not appear to be correct from the contents of their additional notes at least. Secondly, the written order seems to be different than that dictated in court, and that also has been indicated by one of the justices who wrote an additional note.

“As such, will this serve the cause of justice? No. Alternatively, will this serve to further erode the credibility of the judicial system. Absolutely yes.”

The beauty of the SC

Not everyone feels the same though. Lawyer Muhammad Ahmed Pansota was of the belief that “to recuse from a particular bench, it is entirely the prerogative of the particular judge who writes the note.

It is not entirely unprecedented, he said.

“Similar situations have occurred in the past where judges have recused from the bench, so it is not completely and entirely something new, but yes, at one point in time, three or four judges recusing themselves from hearing a petition … this is a unique situation and I think it involves a constitutional question.

“But the reasons that have been given by them, now that the judgement is in the field, we can make an opinion about them,” said Pansota.

“I believe Mr Athar Minallah has very clearly said that this does not merit or warrant a case for article 184(3). He doesn’t consider it a matter of public importance and there is no violation of fundamental human rights alongside Mr Mandokhail, who has his own different take on this. But based on the reasons they have extended, I believe they have every right to recuse and this is the beauty of the honourable supreme court.

“That bench comprises a variety of opinions … it has people from all walks of life and varied opinions,” said Pansota, adding that he believed it was good that the judges had expressed themselves and come out as far as the legal arguments were concerned.

“Now, the five-member bench will complete the hearing in two or three days’ time,” said Pansota. “The point of consideration is very simple — who is supposed to announce the date of election? Who, under the Constitution, is obliged to do so?

“This is what the Supreme Court is examining at the moment and if they are able to reach a decision, they will direct that person or institution to announce the elections.”

Elections must be held within 90 days

Lawyer Hassan A Niazi tweeted that the “fractured order … shows the urgent need for clear guidelines on how the suo motu power should be exercised.”

“In its current state the power is exercised too arbitrarily and is against due process,” he said, adding however that all of this shouldn’t take away from the fact that elections must be held within 90 days. “There is no ambiguity, no exception.”