The Supreme Court’s divided opinion has further widened the controversy over the announcement of the date to hold elections in Punjab and Khyber-Pakhtunkhwa.
Interestingly, this ambiguity has not been created by the government or any other party involved in the case but the top court judges themselves through their order. It is witnessed that the suo motu proceedings in the matter have exposed severe rift within the SC judges.
Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed said he did not know whether it was a 3-2 or a 3-4 order. "I don’t know whether the PTI or the PDM [Pakistan Democratic Movement] has won. What I do know, however, is that the Supreme Court has lost. Unfortunately, [this is] something their lordships should think deeply about,” he added.
Salahuddin observed that the issue could easily have been resolved if a full court was formed to hear the matter. The PDM-led government twice requested Chief Justice of Pakistan Umar Ata Bandial to form a full court but its pleas were turned down on both the occasions.
Senior lawyers wondered whether the purpose of the suo motu proceedings was to uphold the Constitution by ensuring the holding of elections or to shift the supremacy from one section of the superior judiciary to the other.
Even though the matter was pending in high courts, one section of the SC judges proposed to the CJP to invoke the suo motu jurisdiction.
However, the other section of the SC judges opposed this move.
The lawyers believed that the responsibility rested with the leadership of the institution to control the prevailing situation wherein judges were directly questioning each other’s conduct.
CJP Bandial gave the order by a majority of 3:2 -- with Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail dissenting.
However, both Justice Shah and Justice Mandokhail did not mention on what grounds they were dissenting with the other three members of the bench.
They only wrote: “For the reasons to be recorded later, we hold.”
Similarly, their order footnote read: "Initially a nine-member bench heard this matter. Two Hon’ble Judges [Justice Athar Minallah and Justice Yayha Afridi] decided the matter by dismissing the said petitions. Later on, [the] two Hon’ble Judges disassociated themselves from the bench for personal reasons and as the two aforementioned judges had dismissed the matter, the bench was reconstituted into a five-member bench vide order dated 27.02.2023. The decisions of the aforementioned two Hon’ble Judges dated 23.2.2023 form part of the record of this case.”
As the SC order lacks clarity, it is expected that the ECP or any other aggrieved party might approach the top court seeking its explanation.
Although all judges are equal in the SC, the CJP has many advantages as they have the discretionary power to include anyone in the bench without giving reasons.
Everything revolves around the CJP in the apex court.
Legal expert Hafiz Ahsaan Ahmad Khokhar explained that there should be no legal confusion as the present judgment of the SC had been passed by a majority of 3:2 of the reconstituted five-member bench under Article 184(3) of the Constitution.
He noted that earlier, four judges had disassociated themselves after the first hearing of the nine-member bench, and two of them had also given their views in writing.
However, he added these views could not be linked with the proceedings of the present five-judge bench.
“This latest bench conducted the hearing afresh. [It] decided the present constitutional controversy and resolved the issue for once at all by clearly interpreting Article 224(2) of the Constitution that the elections are to be held within 90 days in both Punjab and K-P,” he added.
Khokhar explained that the constitution of the bench as well as the fixation of cases was the prerogative of the CJP under the Constitution and Supreme Court Rules 1980, and they could not be challenged.
Another lawyer said the two judges, who had dismissed petitions on February 23, had become “functus officio” and that was why the bench was reconstituted.
It is expected that the second round of litigation may start soon.
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