Punjab Assembly poll: All eyes on composition of SC bench

ISLAMABAD:

As a division bench of the Supreme Court (SC) referred the matter of delay in the elections for the Punjab Assembly to Chief Justice of Pakistan (CJP) Umar Ata Bandial, the composition of the bench is of utmost significance.

The bench in its order noted that the elections to the provincial assembly are required to be held within 90 days of the said date in terms of Article 224(2) of the Constitution. However, no progress appears to have taken place in this regard and there is a real and imminent danger of violation of a clear and unambiguous constitutional command, it added.

Soon after the hearing on Thursday, a debate started as to how the bench could take cognisance of the matter since a similar case is already pending in the Lahore High Court (LHC). Likewise, the chief justice of Pakistan can only invoke suo motu jurisdiction in view of the apex court’s 2021 judgment.

However, sanity has prevailed and the division bench of the apex court referred the matter to the chief justice for invoking the suo motu jurisdiction and the composition of an appropriate bench in this case.

The apex court is also facing a battle of perceptions, and the composition of the bench is crucial in deciding the fate of this sensitive matter.

Questions have been raised on the composition of benches for the last couple of years.

Since February last year, the top court heard several high-profile and political cases, wherein two senior-most judges, Justice Qazi Faez Isa and Justice Sardar Tariq Masood, were not included in the larger/special benches.

In Match last year, Justice Isa had raised questions over the composition of a larger bench to the hear presidential reference seeking interpretation and scope of Article 63 (A) of the Constitution.

In a three-page letter written to CJP Bandial, he raised eyebrows over several aspects of the structure of the bench, including the absence of senior-most judges from it and the procedural method not taken into consideration while constituting it.

He pointed out that no senior-most judge was consulted while constituting the bench to hear the cases, on which the eyes of the entire nation were set, adding that this was troubling because it could potentially give rise to unnecessary and avoidable misgivings

Earlier, an order of the division bench led by Justice Isa regarding the protection of journalists was also withdrawn by a larger bench led by then-acting CJP Bandial.

When Supreme Court Bar Association (SCBA) moved the SC for ensuring the process regarding the implementation of Article 95 of the Constitution, a five-judge larger bench led by CJP Bandial himself and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Mazahar Ali Miankhel and Justice Jamal Khan Mandokhail were formed to hear the matter. The same bench unanimously set aside then-National Assembly (NA) deputy speaker Qasim Suri’s ruling to ensure the conclusion of the no-confidence motion against prime minister Imran Khan.

The same larger bench held that vote of a defecting lawmaker could not be counted in view of Article 63-A of the Constitution.

A three-judge special bench led by CJP Bandial and comprising Justice Ahsan and Justice Akhtar also set aside then-Punjab Assembly deputy speaker Dost Mazari’s ruling. Even though all ruling political parties had requested the CJP to form a full court, the plea was turned down. Subsequently, these parties, including the then-governor of Punjab, had boycotted the court proceedings.

Last year, CJP Bandial initiated his first suo motu proceedings on the note written by Justice Sayyed Mazahar Ali Akbar Naqvi regarding the alleged executive interference in affairs of investigation and prosecution in high-profile cases, especially top government functionaries, including Prime Minister Shehbaz Sharif.

Later, CJP Bandial formed a larger bench led by himself and comprising Justice Ahsan, Justice Akhtar, Justice Sayyed Mazahar Ali Akbar and Justice Muhammad Ali Mazhar. The matter is still pending.

CJP Bandial, on the suggestion of two judges, has invoked suo motu jurisdiction in Arshad Sharif murder case. A five-judge larger bench led by CJP himself and comprising Justice Ahsan, Justice Akbar, Justice Mandokhail and Justice Mazhar is hearing the matter.

A five-judge larger bench of the apex court led by CJP Bandial himself and comprising Justice Ahsan, Justice Akhtar, Justice Yahya Afridi and Justice Naqvi are hearing the matter of contempt pertaining to Imran over the violation of the court’s May 25 order, wherein the Pakistan Tehreek-e-Insaf (PTI) leaders were restrained from holding a rally at D Chowk.

Moreover, a special bench of the apex court led by CJP himself and comprising Justice Ahsan and Justice Syed Mansoor Ali Shah are hearing Imran’s petition against recent amendments in National Accountability Ordinance (NAO) 1999.

The above-mentioned facts reflect that one judge is part of every bench hearing a politically-sensitive matter.

Senior lawyers are consistently urging that CJP Bandial should end the perception that the majority of likeminded judges are being included to hear politically-sensitive matters

They say that CJP discretionary powers regarding the fixation of cases and composition of benches should be regulated.

Sindh High Court Bar Association’s (SHCBA) former president Salahuddin Ahmed said that the CJP's unfettered power to fix or suddenly take a case away from a bench, constitute a larger bench and compose it with judges of his own choice raises serious questions about the fairness of the process.

"If CJs can influence judicial outcomes through their administrative decisions of deciding when, where and by whom a case will be heard, there is no real judicial independence,” he said.

The SHCBA president said that both these issues need to be simultaneously resolved, not just how suo motu should be taken but also how benches should be constituted and cases fixed. Moreover, if the resolution of these issues is to command any public confidence, it should be done by the full court and not any smaller selected bench, he added.

A senior lawyer said that when there is a strong perception in the legal fraternity regarding division among SC judges, a full court should be constituted to hear this critical issue.

Ex-CJP Asif Saeed Khosa had formed benches comprising senior-most judges to hear high-profile political cases. But his successors did not follow his policy.

Regarding the alleged audio related to an SC judge’s telephonic conversation, a debate has started over the consequences.

One lawyer said that there are two precedents, wherein audio of judges came to the surface.  Firstly, it is a serious offence to record the phone conversation of a judge. Even Benazir Bhutto’s government was dissolved on the charge of taping a judge’s phone in the 1990s. Likewise, when the audio of ex-LHC judge Malik Qayyum came to the fore, he was forced to resign.

Currently, SC judges are not on the same page in every matter. It will be interesting to see how the CJP will deal with the matter pertaining to the audio.