Election suo motu case bench rejigged

CJ Bandial himself to head five-judge larger bench

ISLAMABAD:

A rift within the superior judiciary led to the reconstitution of Supreme Court’s larger bench on Monday to hear the suo motu case regarding delay in the announcement of the date of the provincial elections in Punjab and Khyber-Pakhtunkhwa.

Chief Justice Umar Ata Bandial formed a new five-judge larger bench led by himself and including Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.

The chief justice had formed a nine-member bench to hear the suo motu case.

At the outset of the hearing on Monday, Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi recused themselves as questions were raised on their presence on the bench.

Meanwhile, two more judges, Justice Afridi and Justice Minallah disassociated themselves from the proceedings as they expressed their opinion on the maintainability of the petitions on the matter.

“Keeping in view the order dated 23.02.2023 and the additional notes attached thereto by four of us (Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah) as well as the discussion/deliberations made by us in the ante-Room of this Court, the matter is referred to the Hon’ble Chief Justice for reconstitution of the Bench”, says the court order signed by nine judges.

Justice Minallah, who did not recuse himself, in his note, urged for the formation of the full court to hear this matter. Likewise, Justice Afridi, who also did not recuse, said that the chief justice should take decision regarding his retention in the newly-constituted bench.

A senior lawyer termed the exclusion of the two judges a ‘balancing act’. However, he added that once again, a balanced bench had been constituted wherein Chief Justice Bandial’s opinion would be vital.

Mirza Moiz Baig said that the order rendered by the court was a manifestation of the tensions which had been simmering since the tenure of former chief justice Saqib Nisar.

“The exclusion of the two senior judges of the Court from the hearing of politically consequential cases and the subsequent exclusion of Justices Afridi and Minallah from the bench, particularly after the latter highlighted that the questions framed by him did not find mention in the Order authored by the Chief Justice, are likely to engender more concerns as regards the constitution of benches,” the lawyer said.

“Moreover, such arbitrary reconstitution of a bench, once a bench is seized with a case, is also inconsistent with the view taken by the court in Human Rights Case No. 14959 of 2018”, he added.

In his additional note, Justice Minallah had noted that the written order did not appear to be consistent with the proceedings and the order dictated in the open court.

It is to be noted that Justice Minallah had raised questions regarding the constitutionality of the dissolution of the assemblies. He framed three questions in this regard.

The chief justice, while dictating the order said that the same questions would be incorporated. However, the written order said that those points would be considered at an appropriate stage, while keeping in mind the urgency in the matter.

Justice Minallah also said in his note that it was an “imperative matter” regarding the violation and interpretation of the Constitution and it should be heard by the full court.

“While invoking the jurisdiction great care has to be exercised. Article 176 of the Constitution describes the constitution of this Court. I am of the opinion that it is implicit in the language of Article 184(3) that the conferred extraordinary original jurisdiction must be entertained and heard by the Full Court,” Justice Minallah wrote.

“In order to ensure public confidence in the proceedings in hand and keeping in view the importance of the questions raised for our consideration, it is imperative that the matter regarding the violation and interpretation of the Constitution is heard by a Full Court. The interpretation of Article 184(3) of the Constitution in this context, therefore, also requires interpretation”, he added.

Justice Afridi in his additional note also raised questions about the maintainability of petitions. “Passing any finding or remarks during the proceedings of the present petitions by this Court would not only prejudice the contested claims of the parties in the said petition/appeal pending before the respective High Courts but, more importantly, offend the hierarchical judicial domain of the High Court as envisaged under the Constitution,” he said.

“It would also disturb the judicial propriety that the High Court deserves in the safe, mature, and respectful administration of justice. Accordingly, I dismiss these three petitions,” he further wrote.

“Having decided that exercising powers under Art. 184(3) of the Constitution in the present three petitions pending before us would not be appropriate, I find that my continuing to hear the said petitions is of no avail. However, I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions.”

Justice Shah also raised questions over the composition of the larger bench to hear the suo motu matter. He also expressed his wonder over the inclusion of Justice Sayyed Mazahar Ali Akbar in the bench.

“The suo motu matter (SMC 01/ 2023) before us arises from a judicial order of a learned two-member Bench of this Court  made while hearing a service matter of a civil servant, wherein they made recommendation to the Hon’ble Chief Justice to invoke suo motu original jurisdiction of this Court under Article 184(3) of the Constitution,” he noted.

“The order was made in a case which, in my view, had no concern whatsoever with the present matter before us, reflecting to an ordinary reader of the order an unnecessary interest of the two-member Bench in the matter,” Justice Shah said.

“Attached to the said order is a controversy in the public domain, generated by the audio leaks relating to one of the members of the said Bench. In spite of the requests from within the Court and outside the Court, there has been no institutional response to the allegations either by this Court or by the constitutional forum of the Supreme Judicial Council,” the judge continued.

“Further, there is news of references being filed against the said member before the Supreme Judicial Council by the Bar Councils. In this background and before these allegations could be probed into and put to rest, inclusion of the said member on the Bench in the present matter of ‘public importance’ appears, most respectfully, inappropriate,” he added.

Justice Shah also said that inclusion becomes more nuanced when other senior judges of this Court are not included in the bench. “The Hon’ble Chief Justice has been pleased to observe in his order invoking the original jurisdiction of this Court under Article 184(3) of the Constitution suo motu, in categorical terms that involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement,” he noted.

“But, in spite of the said observation, the two senior most Hon’ble Judges of this Court have not been made part of this Bench to hear and decide upon the matters of “great public importance”, for reasons not expressed in the order constituting the present Bench.”

Justice Shah noted: “Our greatest strength as an apex judicial institution lies in the public confidence and public trust people of our country repose in us. Our impartiality, including the public perception of our impartiality, transparency and openness in dispensing justice must at all times be undisputed and beyond reproach.”

Meanwhile, the newly-constituted five-judge bench led by the chief justice deliberated upon as to who would have authority to give the date of the elections. The chief justice said that they would conclude the hearing of the matter on Tuesday (today).

Attorney General for Pakistan (AGP) Shehzad Ata Elahi said that if the elections were announced today (Friday) then same could not be held within 90 days.