PTI plea: Composition of SC bench matters

Legal wizards stress full court to decide election matter

Hasnaat Malik March 25, 2023
A general view of the Supreme Court of Pakistan in Islamabad, Pakistan April 4, 2022. PHOTO: REUTERS


Though the Supreme Court has entertained the PTI’s petition against the ECP decision to delay the election in Punjab on the same day of its filing, this time around, too, the composition of the bench is crucial.

Former Sindh High Court Bar Association (SHCBA) president Salahuddin Ahmed believes that the best solution would be an all parties conference (APC) to decide on a joint election date and all connected matters.

"The second best would be -- if the ECP’s decision is taken to court -- for a full court to be convened and decide all the issues jointly with the full authority of the court. If it ends up before a smaller bench, it will again invite allegations about the composition of the bench and it will be much harder for the top court to enforce its decision," says Ahmed.

Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail in their judicial order held that such matters should be resolved by parliament. The PTI has been successful in influencing one section of the judiciary to get relief since the Panama Papers case, wherein former prime minister Nawaz Sharif was disqualified for life.

Read more: Divided opinion: Lawyers say SC 'lost' suo motu case

Now, the PML-N supporters are blaming some judges for allegedly rescuing Imran Khan. Keeping in view the polarisation, Chief Justice of Pakistan Umar Ata Bandial should form a full court to hear the matter.

However, a legal debate has started as to whether the PTI's constitutional petition is maintainable in the apex court.

While a petitioner approached the apex court seeking direction for the announcement of an election date, the Supreme Court’s majority judgment held that the president would announce the polling date with the consultation of the ECP. Subsequently, the president announced that Punjab Assembly’s general elections would be held on April 30.

Now the ECP has withdrawn its earlier schedule and has given October 8 as the date for the election. Instead of filing a contempt petition, the PTI, through Barrister Ali Zafar, filed a constitutional petition which was also entertained on the same day.

A lawyer, who refused to be named, wondered how a fresh petition on the same subject would be maintainable when the same petitioner previously got relief in the first round of litigation.

He said that if the order was violated then a contempt petition should have been filed. Likewise, he asked whether it was not appropriate that the matter related to the postponement of elections should be decided by Lahore High Court (LHC) first.

Senior lawyers say that if the full court is formed then these issues might be taken up by some SC judges. PTI’s lawyer Barrister Taimur Malik says that the petition filed through Barrister Zafar raises 14 important questions of law which must be decided by the apex court as the final arbiter on legal issues.

“In my personal opinion, there is no factual controversy here and the reasons mentioned in ECP’s order do not merit consideration and the questions to be decided by the Supreme Court are of a purely legal nature and whether the time limits set in the constitution for general elections need to be followed and the duty of the executive authorities to assist the ECP in this respect,” he said.

Regarding the maintainability of the petition, Malik says that the apex court is the right forum as it relates to the implementation of its own recent decision and given the public importance of the issue.

Another lawyer says that while it may be a matter of public importance, such ECP decisions are challenged in the high courts.

He wondered whether judges who decided a similar petition in the past should hear the matter. The lawyer also questioned whether the caretaker government can perform its function beyond 120 days.

All eyes are now on CJP Bandial and it remains to be seen what bench will be constituted by him. Even the federal government is waiting for the bench's composition in order to appoint a new attorney general of Pakistan (AGP).


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