Govt keeps pressing for full court formation

Despite the Supreme Court’s reluctance, the PDM-led federal government has been consistently pressing it to form a full court to hear petitions broaching a clutch of sensitive matters, including one challenging Chief Justice of Pakistan (CJP) Umar Ata Bandial’s discretionary powers.

Since the ouster of Imran Khan from the PM’s office through a vote of no-confidence in April last year, several requests were made by both sides – government and PTI – for the constitution of a full court in several matters.

After the in-house change, the PTI had moved an application requesting the bench to constitute a full court hearing presidential reference regarding the interpretation and scope of Article 63A of the Constitution.

However, the PTI did not press that application before the bench.

The PDM had requested a three-judge bench of the Supreme Court led by CJP Bandial to form a full court hearing the matter regarding the interpretation of Article 63A of the Constitution after then Punjab Assembly deputy speaker Dost Mazari discarded 10 PML-Q MPAs votes in the provincial chief minister election. However, their request was turned down.

Subsequently, the PDM and others boycotted the court proceedings.

The issue regarding the constitution of a full court was raised again by the ruling political parties when CJP Umar Ata Bandial had taken suo motu notice regarding the delay in the announcement of elections for Punjab and Khyber-Pakhtunkhwa assemblies. But the top judge did not form full court on the matter.

Even Justice Athar Minallah in his judicial note had said that the interpretation of the Constitution was the prerogative as well as the duty of this Court.

“It is also an onerous duty to protect, preserve and defend the Constitution. It has been observed by this Court that the Constitution is an organic document designed and intended for all times to come. Interpretation of the Constitution by this Court has a profound impact on the lives of the people of this country, besides having consequences for future generations.

“The framers of the Constitution have conferred an extraordinary jurisdiction on this Court under Article 184(3). The manner in which this power is to be exercised is in itself a matter of immense public importance. 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. 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,” Justice Minallah, who is not included in the larger bench hearing SC (Practice and Procedure) Act 2023, said.

Senior lawyers believe that the controversy regarding the holding of elections could have been handled well if a full court was formed.

Since a presidential reference was filed against Justice Qazi Faez Isa in May 2019, the apex court had been divided along two ideological lines.

One section says that discretionary powers of CJP should be regulated while the other section while passing judicial orders held that the chief justice was the master of roster in the formation of benches.

It is believed there is a need to form a full court to hear the matter when there are diverse opinions among the top court judges.

It has been witnessed that the judges who evolved jurisprudence in favour of parliament's supremacy and secured the legislation, are not part of the eight-member larger bench.

There is no representation of the K-P and Balochistan in the larger bench whereas out of eight, five members belong to Punjab.

This composition of the bench strengthens the argument that the discretionary powers of CJP should be regulated.

Legal experts are of the opinion that CJP Bandial should make efforts to end the perception that the apex court is divided into two factions and that one section of judges is being sidelined on important politically sensitive matters.

During CJP Bandial tenure, two senior-most judges Justice Isa and Justice Sardar Tariq Masood have not been included in any bench hearing politically sensitive cases.