Crisis deepens as another judge recuses himself

CJP Bandial gave clear message that elections of provincial assemblies 'will be held, come what may'

ISLAMABAD:

Crisis within the Supreme Court has further deepened as another judge, Justice Jamal Khan Mandokhail, recused himself from the larger bench hearing the case regarding the delay in provincial assemblies’ elections.

The lawyers were questioning what would be the legitimacy of the judicial proceedings wherein voices were being raised within the SC on the matter related to the postponement of elections of provincial assemblies.

Next week would be very crucial in the prevailing situation wherein there was also clash within the SC.

An unpleasant happening was witnessed, when the SC registrar on Friday issued a circular disregarding the two judges’ judicial order wherein it was held that hearing of all cases under Article 184 (3) of the Constitution be postponed until amendments were made in the SC Rules 1980 regarding CJP's discretionary powers to form special benches.

Now, the question arose whether a judicial order could be disregarded through an administrative order passed by the CJP.

The debate continued on what would be the consequences of issuance of the circular. It was expected that a section of the SC judges would give a strong reaction over the move in the next couple of days.

A lawyer opined that instead of disregarding the administrative side, the “bench should have suspended the order for the time being”.

He said that contempt might be issued to the SC registrar over issuance of the circular. However, next week would be further crucial about the present state of affairs within the SC.

Following the circular as well as recusal of Justice Mandokhail, Pakistan Bar Council Executive Committee Chairman Hasan Raza Pasha urged the CJP to summon a full court meeting to discuss the prevailing situation.

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The chief justice, however, said that they were working to call a full court meeting in the next couple of days.

However, it was learnt that the temperature was so high within the SC that there were less chances that the judges of both the sides would sit to discuss certain issues.

A lawyer said, “The CJP should have consulted the judges before issuance of the circular.”

The most alarming thing was that Justice Mandokhail in his judicial note regarding his recusal said that three judges – namely CJP Bandial, Justice Ijaz ul Ahsan, and Justice Munib Akhtar – dictated the order in his absence and without contacting him for participation in the deliberations.

“I felt that the three learned members of the bench, for reasons best known to them, opted not to involve me in the consultation,” the note said.

The order also reflected how the SC judges were divided.

CJP Bandial’s clear message

It was witnessed during Friday’s hearing that CJP Bandial had given a clear message to the executive authorities as well as the establishment that elections of provincial assemblies “will be held, come what may”.

Likewise, he was standing with Justice Sayyed Mazahar Ali Akbar Naqvi who was facing a tough time by them on the charges of misconduct.

Giving reason for including Justice Naqvi in the nine-member larger bench, CJP Bandial said that there was a silent way of communication with the world.

Justice Bandial also stated that he was the only superior court judge left who was ousted on account of not taking oath under November 3, 2007 Provisional Constitutional Order.

He said that later a miracle happened as he was again reinstated on his post as a judge of the Lahore High Court.

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For the first time, Justice Bandial addressed the establishment during the hearing.

He wondered that security was not being provided by the armed forces on account of terrorism, which existed in the country for the last 20 years.

CJP Bandial also made it clear that they would ask directly for the reason behind not providing security in the elections.

At the end, the CJP asked the AGP to come along with the defence secretary before the bench on Monday.

He said that if the SC order regarding the holding of general elections was not implemented then executive authorities would face consequences.

It was debatable whether a divided SC could compel the military to provide security in the elections.

A PML-N lawyer, however, said that the CJP’s remarks reflected his frustration that he was being isolated within the court.

Though all segments of society, fellow judges, lawyers and political parties, including the petitioner party PTI, had no objection to the constitution of a full court, the bench was reluctant without giving any valid reason.

CJP Bandial also admitted that the SC was divided after filing of the presidential reference against Justice Qazi Faez Isa.

He said that both Justice Isa and the SC suffered for two years.

The CJP believed that the complaint against Justice Naqvi was a tax issue which should be dealt by the tax authorities. However, a lawyer said, “If charges against Justice Naqvi are false, the CJP should place his matter before Supreme Judicial Council for his exoneration.”

It was interesting that a three-judge bench led by CJP Bandial did not examine whether the petitioner – PTI – came before the SC without ill intention.

It was being said that the constitutional institutions could be ineffective after passing of the resolution of no confidence against former prime minister Imran Khan. The PTI left the National Assembly after Imran’s ouster. Later, they dissolved both the provincial assemblies without any valid reason.