New SC bench to hear poll delay case tomorrow after Justice Aminuddin’s recusal

Published March 30, 2023
The photo shows Justice Aminuddin Khan of the Supreme Court. — SC/website
The photo shows Justice Aminuddin Khan of the Supreme Court. — SC/website

Hours after Justice Aminuddin Khan recused himself from a Supreme Court bench hearing the PTI’s petition against the Election Commission of Pakistan’s decision to delay polls in Punjab, the SC said that a new bench will take up the case at 11:30am tomorrow (Friday).

The SC order, read out by the court staff, stated that the decision regarding the members of the bench will be taken on Friday and the case will be decided before a bench that does not include Justice Khan.

In an unexpected development earlier today, the five-member apex court bench hearing the case was dissolved after Justice Khan distanced himself from it.

“After yesterday’s judgement, I recuse myself from hearing the case,” Justice Khan said.

He referred to a judgement, authored by himself and Justice Isa, issued a day earlier which noted that the chief justice of Pakistan (CJP) did not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.

The original bench — which had conducted three hearings on the PTI petition — was constituted by CJP Umar Ata Bandial. It was headed by the CJP himself and included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Khan.

Reason for Justice Khan’s recusal

The judgement to which Justice Khan referred for his recusal was issued in a suo motu case related to the award of an additional 20 marks to candidates for memorising the Holy Quran by heart to get an MBBS or BDS degree.

A three-member special bench, formed by the CJP, heard the case. It was headed by Justice Isa and comprised Justice Khan and Justice Shahid Waheed. Yesterday’s verdict was issued by Justice Khan and Justice Isa, while Justice Waheed disagreed with the judgement.

The judgement, a copy of which is available with Dawn.com, stated that the Constitution did not grant unilateral and arbitrary power to the country’s top judge to list cases for hearing, form special benches and select judges.

It proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the chief justice of Pakistan’s (CJP) discretionary powers to form benches.

“With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in the verdict. “Collective determination by the Chief Justice and judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice.”

The judgement explained that there were three categories of cases. First, when a formal application seeking enforcement of the fundamental rights was filed; second, when suo motu notice was taken by the Supreme Court or its judges; and third, when there are cases of immense constitutional importance and significance, which may also be those in the first and second categories.

Order 25 of the Supreme Court Rules 1980 only attended to the first category of cases and there was no procedure prescribed for cases in the second and third categories, it observed, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3).

The order noted that neither the Constitution nor the rules grant the chief justice or the registrar the power to make special benches, select judges who will be on these benches and decide the cases that they will hear.

“We must remind ourselves of the oath that we take, which is to (a) act in accordance with the Constitution and the law, (b) abide by the code of conduct, (c) not let personal interest influence decisions, (d) do right by all people and (e) to preserve, protect and defend the Constitution,” it added.

90-day constitutional provision on holding elections inviolable: Imran

Reacting to the development, PTI Chairman Imran Khan tweeted that it didn’t matter whether a five-member SC bench heard the case or a full bench did. “All we want to know is if elections will be held within the 90 days’ constitutional provision.”

He recalled that before the provincial assemblies of KP and Punjab were dissolved, he had consulted top constitutional lawyers, “all of whom were absolutely clear that the 90-day Constitutional provision on the holding of elections was inviolable”.

“Now, the imported government of crooks, their handlers and a compromised ECP are making a complete mockery of the Constitution. By cherry-picking which Articles of the Constitution they will abide by, they are threatening the very foundation of Pakistan, which is the Constitution and Rule of Law.

“So petrified are they of elections and so desperate to whitewash their convicted leaders that they are prepared to destroy the Constitution and any semblance of Rule of Law,” the former prime minister added.

SC must internally address the issue, says Barrister Ali Zafar

Barrister Ali Zafar — who is representing the PTI in the case — said that the SC must internally address the current issue arising from divergent views among judges.

Speaking to the media outside the apex court, the lawyer suggested that the court either form a full bench or another combination of judges that it deemed appropriate to settle the matter.

Zafar emphasised that the issue at hand concerned a fundamental constitutional matter and was not limited to the composition of court benches. The central question is whether the ECP has the right to postpone elections or to determine their timing, he said.

He stated that there may be a slight delay, but expressed confidence that a new bench would soon be formed to conduct a hearing on the matter.

Zafar emphasised the crucial role of the SC as the “ultimate safeguard for democracy”, hoping that the court would uphold its responsibility to ensure a fair and just resolution of the matter.

Contention over election date ruling

Friction in the original five-member bench could already be seen on Wednesday.

During yesterday’s proceedings, the March 1 Supreme Court judgement regarding elections in Khyber Pakhtunkhwa (KP) and Punjab became a bone of contention among top judges, as Justice Mandokhail, while sticking to his guns, wondered about the “order of the court” in the suo motu proceedings.

To date, no ‘order of the court’ has been released and in the absence of such an order, how could April 30 be announced as the election date or its extension till Oct 8, Justice Mandokhail regretted.

In case of a split decision, the order of the court explains, in the end, the “real order” and which judgement was in majority or in minority, Justice Mandokhail observed, adding that even “if we summoned the case file, one will find out there was no order of the court”.

Meanwhile, Justice Akhtar wondered how the “minority could claim to be in majority when the March 1 short order was signed by all five judges”.

Justice Mandokhail wondered whether the note issued by Justice Yahya Afridi and Justice Athar Minallah had vanished in thin air or whether the CJP removed them from the bench. But the CJP observed that “whatever happens behind the chambers should be kept among ourselves”.

Instead of harping on the same point, the CJP observed that the AGP would assist the court on the footnote mentioned by Justice Syed Mansoor Ali Shah in his dissenting note on March 1 short order and had held that the opinions of Justice Afridi and Justice Minallah will be considered part of the judgement.

The petition

PTI’s petition, moved by party’s Secretary General Asad Umar, former Punjab Asse­m­bly speaker Mohammad Sib­tain Khan, former Khy­ber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECP’s decision was in violation of the Constitution and tantamount to amending and subverting it.

In the petition, PTI sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECP’s need to hold the elections.

It also requested the court to direct the Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for elections in the province. Earlier, he had announced May 28 as the date for polls.

The PTI questioned the ECP’s authority to “amend the Constitution” and asked how it could decide to delay elections to any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.

The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.

In its March 1 verdict, the Supreme Court ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections, the petition recalled.

The ECP cannot act in defiance of the Supreme Court’s directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.

The petition said that if the excuse of unavailability of security personnel was accepted this time, it will set a precedent to delay any future elections.

The petition added that there was no assurance that these factors — financial constraints, security situation and non-availability of security personnel — would improve by Oct 8.

The “so-called excuse” would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared adding that in the past similar situations have persisted, but elections were held in spite of them.

These situations can’t be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.

“Not holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,” the petition explained.

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