Friday, a three-member Supreme Court (SC) bench resumed hearing the PTI’s petition against the Election Commission of Pakistan’s decision to postpone elections in Punjab, after the departures of two of its judges slowed proceedings.
The recusal of Justice Jamal Khan Mandokhail, which came a day after that of Justice Aminuddin Khan, caught the apex court off guard today and prompted government figures to call for the formation of a full court to hear the case.
The original bench comprised of:
Pakistan’s Chief Justice (CJP) Umar Ata Bandial
Justice Ijazul Ahsan
The Judge Munib Aktar
The Judge Jamal Khan Justice Mandokhail Aminuddin Khan
However, the Chief Justice of Pakistan, Umar Ata Bandial, along with Justices Ijazul Ahsan and Munib Akhtar, returned to the courtroom to continue the hearing.
The hearing began today at 2:00 p.m., a delay from its originally scheduled time of 11:30 p.m.
The listening
The chairman of the executive committee of the Pakistan Bar Council (PBC) appeared before the bench as the proceeding began. However, according to the Chief Justice, the court will hear his arguments later.
Hasan Raza Pasha of the PBC stated, “The bar has nothing to do with anyone’s support.” “If a full court bench is not available, you may call a full court meeting.”
The CJP replied that he was contemplating it and went on to say that the Supreme Court judges had positive relationships with one another.
“Two judges recused themselves from the hearing today and yesterday,” he said, revealing that the judges engaged in cordial conversations both before and after the recusals.
“We also discussed certain reservations. Some political issues were brought up by the media and press conferences, but the court displayed restraint throughout the proceedings.”
Justice Bandial noted that various people were criticising different Supreme Court judges and added that he was looking into the issue. “We will discuss this matter in my chamber,” he informed Pasha.
The CJP added that Pasha had appeared in court for the first time today and urged him to demonstrate his innocence through his actions, rather than his words. “I’ve spoken with the president of the Supreme Court Bar Association… we respect you, please come to my chamber.”
If the issue had only involved “outward appearance,” said Justice Bandial, “our lives would have been peaceful.”
“Media members occasionally say inappropriate things, but the court is always restrained,” the CJP remarked, adding that he would hold some meetings following the hearing. The sun will rise on Monday with good news.
Abstentions of Justices Mandokhail and Khan
Justice Mandokhail’s recusal occurred one day after Justice Aminuddin Khan withdrew from the bench, citing his signature on an order issued by a different bench proposing the postponement of all cases brought under Article 184(3) of the Constitution.
“In view of case No. 4 of 2022 (awarding of 20 additional marks in MBBS or BDS degrees to candidates for memorization of the Holy Quran), which is still pending, but the present bench is proceeding with case (postponement of Punjab elections), I recuse myself,” he had stated.
Subsequently, on Friday morning, a new bench comprising four judges, excluding Justice Khan, was formed.
As soon as the proceeding began, however, Justice Mandokhail announced his resignation.
“Justice Aminuddin Khan recused himself from the bench, and we awaited the court order,” he explained. Yesterday, I received the order at home.
The judge then requested the solicitor general to read the order aloud in court, which he did.
The order, a copy of which can be found on Dawn.com, stated that Justice Khan had recused himself from the bench, but that the CJP, Justice Akhtar, and Justice Ahsan “respectfully disagreed” and believed that the hearing in the case would proceed “unaffected.” It ordered that the case be assigned to a bench on which Justice Khan would not sit.
The court order also included Justice Mandokhail’s dissenting note, which stated: “The order was not dictated by the HCJ [chief justice], nor was I consulted. However, the effect of the ruling must be considered in court.”
Justice Mandokhail, referencing his dissenting opinion in the Supreme Court today, stated that despite being a member of the bench, he was not consulted regarding the formation of the new bench.
The judge remarked that he did not belong on the new bench, noting that “all judges are bound by the Constitution.”
Minister: a full court hearing is “the only way out”
In response to this development, Defence Minister Khawaja Asif stated that a full-court bench must be formed immediately to hear the Punjab election delay case.
Asif told the media outside the Supreme Court today that the erosion of public confidence [in the judiciary] was a significant issue that needed to be addressed. He reiterated the coalition government’s demand for the formation of a full court, which has been made since the beginning of the case.
Referring to the judges’ recusals, he expressed dismay and concern, stating that the nation was observing the situation with “despondency.”
Asif acknowledged that people had high hopes for the judicial system, and that the current turn of events was regrettable. He added that while debates and disagreements were a natural part of political culture, they were not part of their [judicial] culture.
PTI petition
PTI Secretary General Asad Umar, former Punjab Assembly Speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani, and former Punjab legislators Abdul Rehman and Mian Mahmoodur Rashid filed a petition claiming that the ECP’s decision violated the Constitution and amounted to amending and subverting it.
In its petition, the PTI requested that the federal government ensure law and order, provide funds and security personnel in accordance with the ECP’s requirements for holding elections.
It also asked the court to order the Khyber Pakhtunkhwa governor to announce the date of provincial assembly elections. Last week, KP Governor Ghulam Ali also proposed October 8 for provincial elections. Earlier, he had announced that elections would be held on May 28.
The PTI questioned the ECP’s authority to “amend the Constitution” and asked how it could decide to delay elections to any assembly beyond the Constitutionally mandated period of 90 days from the date of dissolution of said assembly.
The petition asserted that the ECP was obligated to obey and implement the Supreme Court’s rulings but lacked the authority or jurisdiction to overturn or review them.
The Supreme Court ruled on March 1 that elections for the Punjab Assembly must be held within 90 days, with the date to be announced by the president. The petition recalled that it also directed the authorities to provide funds and security personnel to ECP for the elections.
The petition argued that the ECP cannot disregard the Supreme Court’s directives, as it did in this case, which was illegal and subject to annulment. By announcing Oct 8 as the election date, the ECP has delayed the elections by more than 183 days beyond the 90-day constitutional limit.
According to the petition, if the excuse of insufficient security personnel is accepted this time, it will set a precedent for postponing future elections.
According to the petition, there is no assurance that these factors — financial constraints, security situation, and lack of security personnel — will improve by October 8.
The petitioners feared that the “so-called excuse” would allow the Constitution to be suspended every time elections were scheduled, despite the fact that similar situations have persisted in the past, but elections have been held regardless.
These circumstances cannot be used to “subvert” the Constitution and deny the right of the people to elect representatives.
The petition explained that failing to hold elections in the face of terrorist threats would be tantamount to caving in to the threats, which is the objective of all terrorist activities.
