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Full court or not? Legal experts weigh in on whether elections delay case should have SC’s full might

With some saying it's not needed, most of the lawyers say a full court would lend legitimacy to a Supreme Court that is very publicly divided.
Published March 31, 2023

The case on the Election Commission of Pakistan’s (ECP) postponement of the elections in Punjab, being heard by the Supreme Court took an unexpected turn when two judges recused themselves from the bench in as many days, leading to calls from government officials for the chief justice to restore order.

Justice Aminuddin Khan recused himself from hearing the case on Thursday, and on Friday Chief Justice of Pakistan (CJP) Umar Ata Bandial reconstituted the bench with four of the remaining judges, namely Justices Ijazul Ahsan, Muneeb Akhtar, Jamal Khan Mandokhail and himself. However, the bench was rocked by yet another departure when Justice Mandokhail withdrew, saying he was a “misfit” on the bench. Then it was up to the three judges: CJP Bandial, Justice Ahsan and Justice Akhtar to hear the case.

Government officials were swift to renew their demand for a full court. Interior Minister Rana Sanaullah said the current situation required the formation of a full court to hear the matter. Defence Minister Khawaja Asif said a full court is the “only way out”.

But is it? reached out to legal experts to weigh in on the issue.

‘A constitutionally simple matter’

Barrister Asad Rahim Khan said that the formation of a full court in the poll delay case was not needed. “If there is any complicated constitutional case, talks can be held for the formation of a full court, but not in this case,” he told DawnNewsTV.

He said it was already established (in the Constitution) that elections must be held within 90 days of the dissolution of an assembly. The barrister said the debate on the issue was being “unnecessarily dragged on”.

“There is no legal standing for it. As far as the judge (Justice Mandokhail) is concerned who said he is a ‘misfit’ on the bench, it is his viewpoint and since he has recused himself from the bench, it is hoped that Pakistan may move towards stability and the judiciary takes a decision on it soon,” the legal expert said.

He underlined that it was the CJP’s prerogative to form a bench as he deemed appropriate. “No petitioner or any government lawyer can stop that.”

He recalled a decision of a five-member SC bench wherein the CJP was referred to as “the master of the roster”, which he said was enough to assess the authority of the top judge.

The barrister noted that the formation of a full court would cause no harm, but this case was neither one of first impression, nor of constitutional complexity, and that the core question — elections within 90 days — had already been decided.

He added that benches cannot be formed according to the wishes of petitioners, as it would create the unfortunate precedent of demands for full benches for each politically charged case, even as caseloads soar.

‘Full court would only delay proceedings’

Barrister Rida Hosain was of a similar opinion. She told that “there is an obvious and very public divide in the Supreme Court.

“While the chief justice is hearing a constitutional case that will decide the fate of our democracy, he is being accused of running a one-man show. Judges are, through their decisions, casting aspersions at one another.

“There is merit in the position that decisions of a full court will have more moral authority, however, in this case, it would only further delay proceedings, and ultimately the date of the elections.

“The case before the court is a simple one that is being made needlessly controversial. The court has to decide whether the ECP can alter the election date to October 8. The Constitution is clear as day that elections must be held within 90 days of dissolution.”

She added that while some were suggesting that only a decision of a full court will be acceptable, “the acceptance of the Supreme Court’s decisions cannot be made conditional upon the formation of a full court. Parties are bound by the decisions of the court regardless of whether or not they like them.”

Hosain added that “wisdom, in this case, lies in following the letter and the spirit of the Constitution.”

A matter of precedent

Other legal experts had a different view. Laywer Salahuddin Ahmed was of the opinion that a full court was essential from day one.

“Only a full court verdict will carry the moral and public legitimacy necessary not only to conclusively resolve this dispute but to ensure enforcement of the eventual court orders,” he said.

“Unfortunately, despite repeated requests, a full court was not formed in the vote of no-confidence case, nor the 63-A case, nor the Hamza Shahbaz/Parvez Elahi case, nor the earlier round of this election case. Instead, for all those cases, benches were formed including almost the same judges every time. That has brought us to this sorry pass. In such a polarised environment, the SC cannot remain blind to the fundamental precept that justice should not only be done but be seen to be done.”

As for the matter of a visible divide in the apex court making the hearing difficult he said, “surely it is not impossible for judges to agree to a code of conduct for management of the case that will allow all parties to present their case in a specified time with minimum possible interventions from any member of the bench.”

‘Should never have been heard by anything less than a full court’

Lawyer Abdul Moiz Jaferii was also of the opinion that “the election delay case should never have been heard by less than a full court.”

Elaborating, he said: “The entire controversy within the Supreme Court is based upon a disagreement between judges about the technicalities of whether a suo moto should have first been taken and the manner in which it was taken and the way the first bench was put together.

“This has gone on to become a deeper dispute about the chief justice’s preferences of particular judges when making benches to hear constitutionally critical cases. And his disregard for other more senior judges.

“None of the judgements given in this entire elections saga dispute that the constitution is clear regarding the 90 days deadline for elections post the dissolution of assemblies. The Justice Shah and Mandokhail minority opinion, which calls itself a majority opinion, is also clear on what it feels the way forward is: that the single bench LHC decision [which mandates the ECP to hold elections within 90 days] is binding and in the field.”

Jaferii said that what was “most frustrating” about the whole issue was that it was “rooted in administrative disagreements” and was “tainting the perception of the entire Supreme Court, the integrity of individual judges is being publicly questioned to suit political designs”.

He added that “none of this would have happened had CJP Bandial brought a bit of much-needed democracy and transparency to the way he runs the Supreme Court.

“These selective smaller benches are already being used as excuses to dispute what the order of the court actually is. The court’s time is being wasted on such trivialities when the matter of 140 million people and their right of representation is being tampered with.”

Lawyer and columnist Hassan A. Niazi argued that it was time to have a full court hearing to resolve this internal dispute and announce an election date.

Elaborating on his comment, he stated that forming a full court hearing on the issue would further resolve multiple issues that had made the election date hearing “controversial”.

Niazi said that a full court would first authoritatively resolve the prevailing question of whether the initial judgment on the election case was through a majority of 3-2 or 4-3 which had caused polarisation within the court itself.

Second, he said that it would eliminate all arguments that the CJP was deliberately excluding judges who may potentially dissent from his views. Finally, Niazi added that if all judges in the Supreme Court authoritatively stated that the Constitution demanded that elections be held in 90 days it would set a precedent that would conclusively put the issue of delaying elections today or in the future to rest.

“It is important that justice is not only be done by the court but it should be seen to be done in an impartial manner by the people of Pakistan,” he said, adding that he was of the opinion that at this point, “a full court is the best way to ensure this happens.”

‘Full court will certainly lend credibility to decision from a divided SC’

Lawyer and columnist Basil Nabi Malik said the problem was of credibility.

Malik told “We can talk for days on end about the mess we are in, but frankly, of all the issues confronting the Supreme Court today, the legal issues are the least of their worries.”

Malik expressed concern about the court’s divisions, noting that they were “extremely public.” “A full court hearing for this matter may not have changed that, but it would have certainly lent credibility to any decision, unanimous or otherwise, that would have resulted from it,” he added.

“Considering the widespread perception of bias and prejudice that has plagued this bench, and its slightly moderated combinations and permutations, it was important that the Supreme Court, in this climate of polarisation, rise above its internal fissures to address an issue which affects millions of people. This is perhaps why the call for a full court hearing was all the more important.”

He said that firstly, it would have shown that despite internal differences, the Supreme Court could rise above its differences for the greater good. Secondly, no judge could reasonably expect political foes to bury the hatchet when the Supreme Court itself looked internally divided to such an extent that the said justices could not even perceivably sit in the same room. Thirdly, a full court hearing would afford the issue the importance that it deserved.

“More judges are better than fewer, and that is because a greater number of judges allows a case to receive the collective wisdom of the many as opposed to few,” he said. “This alone should have been sufficient to concede to such a request.”

In light of the recent judgement in the Hafiz-i-Quran case, and the recusals of the judges “it appears that a full court hearing is unlikely and somewhat improbable now”. “This is unfortunate and something that was wholly avoidable.”