Why did the SC reject govt’s request for full court?

Lawyers say CJP should avoid giving the impression that only like-minded judges are included in larger benches


Hasnaat Malik July 26, 2022
A policeman walks past the Supreme Court building in Islamabad, Pakistan October 31, 2018. Photo: REUTERS/File

ISLAMABAD:

The Supreme Court’s decision to turn down the ruling alliance’s demand to form a full bench in petitions related to the controversial Punjab chief minister's election has seeded confusion as to why the request was given a thumbs down.

The three-member bench provided the rationale that administrative issues such as the non-availability of judges informed its decision against the full court. Similarly, it also pointed out that the nature of the case did not warrant it.

Nonetheless, political observers as well lawyers reckon a few possible factors could have driven the bench to the decision a few expected, including its apprehensions that a full bench could have thrown its previous opinion on Article 63-A into the throes of fresh speculations and questions.

‘CJP was visibly irked’

Some analysts hold the view that counsels pleading the PML-N’s case could have ended up touching the ‘raw nerves’ of the judges.

For instance, when Deputy Speaker Dost Muhammad Mazari’s lawyer Irfan Qadir contended that a full court could also dispel the impression “that certain cases go to the same bench”, CJP Umar Ata Bandial, who is known for being even-tempered, seemed to have been irked.

At one point, the CJP issued a stern warning to Qadir that if he did not listen to the judges, he would be asked to leave the rostrum.

To make the matters worse, Mazari’s counsel said that CJP was consistently urging political leaders to be united in the national interest, wondering when the SC judges will get united.

"You are not biased but you are not free from bias,” Irfan Qadir told the bench.

Read Legal debate: Composition of benches gets extra importance

The judges, who seemed calm before taking the first break around, were at this point apparently losing their composure.

Meanwhile, the majority of those present in the courtroom were expecting that either a full court or at least a larger bench would be formed but the hopes dimmed after a visible change in the CJP's mood flashed across his face.

Similarly, when the CJP invited the respondents to present their arguments on merit, Law Minister Azam Nazeer Tarar requested time to get fresh instructions to argue the case on merit and reiterated the request for a full court. However, the chief justice expressed disappointment over his request.

Subsequently, PML-Q lawyer Salahuddin, in his turn, fuelled the annoyance by saying the people were already aware of both the Sharifs’ and Chaudhrys’ governance and “no sky would fall” if either were in power.

However, he said, if the public perception was formed that only a select few judges deal with important political matters then that would “certainly be akin to a sky falling”. He again prayed for the formation of a full bench.

Unnecessary delay

Meanwhile, a second hypothesis being floated is that the apex court wanted to put a lid on the mushrooming crisis that has gripped Punjab for months.

At one point, Justice Bandial remarked that the full court could only be constituted in September. “Should we stop everything until then?”

“We can’t abandon the most important matter of the state. We can’t leave the matters of the Constitution and the public interest hanging [in the middle],” he said.

The chief justice said that every citizen, and even the court, was worried about the economic situation. “Is this state of the economy because of the court or because of instability?”

‘Personal stakes’

Likewise, the decision also spawned a high volume of speculations about the top court’s own “insecurities” – a claim more loudly chorused by the parties whose political stakes were badly affected.

Maryam made a series of critical tweets soon after the apex court's verdict, saying the reason the request for a full bench was rejected was the fear of contradictions in the court's own decision.

However, several lawyers also believed that the inclusion of other judges could have questioned these judges’ opinions regarding the interpretation and scope of Article-63 A.

A lawyer pointed out that the size of the bench was an issue.

“The issue is as who is sitting on the bench hearing high-profile cases. After Justice Qazi Faez Isa’s case, the SC judges are divided on ideological lines as is reflected in their rulings delivers in high-profile cases,” the lawyer pointed out.

However, he emphasised that if the views of judges on constitutional issues are laid bare and become an open secret then the CJP should balance the composition of benches.

“The CJP should avoid giving the impression that only like-minded judges are being included in larger or special benches,” he said and added the CJP should also dispel the perception that he was referring sensitive matters to his like-minded judges.

“If the CJP did not review the policy regarding fixation of cases as well as the composition of benches, then SC's moral authority may erode,” he added.

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