A three-member reconstituted bench on Friday rejected Attorney General for Pakistan (AGP) Mansoor Usman Awan's request regarding the formation of a full court in the case against the postponement of the Punjab and Khyber Pakhtunkhwa assembly elections.
Following the recusal of two judges, a three-member bench heard the case and after hearing arguments from all parties adjourned the hearing till April 3 (Monday).
The three-member bench was headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprised Justice Ijaz Ul Ahsan and Justice Munib Akhtar.
The initial five-member bench comprising CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Amin-Ud-Din Khan, and Justice Jamal Khan Mandokhail was formed to hear the case. It held three hearings on the matter from Monday to Wednesday.
The three-member bench was formed today after two of the five judges of the original five-member larger bench recused themselves.
Justice Khan was the first member to recuse himself which led to the dissolution of the bench.
On Wednesday, an SC bench headed by Justice Qazi Faez Isa ordered the postponement of cases being heard under Article 184(3) of the Constitution till the amendments made in the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches.
Justice Khan concurred with Justice Isa while Justice Shahid Waheed dissented with the majority order of 2-1 in the suo motu case regarding the grant of 20 marks to Hafiz-e-Quran students while seeking admission to MBBS/BDS Degree under Regulation 9(9) of the MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018.
Consequently, on Thursday the bench hearing the election case was dissolved following Justice Khan's recusal in line with Justice Isa's order.
After the dissolution of the bench, the apex court announced that the bench would continue hearing the case without Justice Khan.
When the court met today, Justice Mandokhail also recused himself from hearing the case saying he believed that he was a "misfit" for the bench.
Judgment disregarded
But before the election case hearing was set to resume, the Supreme Court “disregarded” the judgment authored by Justice Isa through a circular issued by SC Registrar Ishrat Ali.
“The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction,” observed CJP Umar Ata Bandial in the circular issued today.
It noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
“Such power is to be invoked by the Chief Justice on the recommendation of an Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution. The said majority judgment, therefore, disregards binding law laid down by a larger bench of the Court,” read the circular.
The recusal
When the bench assembled today, AGP Awan came on the rostrum to speak but CJP Bandial told him that Justice Mandokhail wanted to say something.
The judge, while recusing himself from hearing the case, remarked that he was awaiting the order after Justice Khan’s recusal from the case.
“I received the order at home. I had written a separate note on the order,” said Justice Mandokhail. He then asked AGP Awan to read out his note.
After the AGP read out the note written in the order, Justice Mandokhail remarked that he was a member of the bench but he was not consulted while the order was being written.
“I believe I am a misfit in the bench. I pray whichever bench is formed in this case gives a verdict that is acceptable to everyone,” said Justice Mandokhail. He prayed for his institution, adding that he and his fellow judges were bound to follow the Constitution.
“I wanted to say something yesterday as well, perhaps there was no need for advice from me while writing the judgment,” noted Justice Mandokhail. He added that the other three members of the bench did not find him “worthy” of giving advice.
After this, Justice Mandokhail tried speaking but was stopped by the CJP. He instead thanked the judge for his note.
“Whatever decision is made on the formation of the bench will be announced in the court in a while,” remarked CJP Bandial.
Later, the court announced that a three-member bench will resume the hearing at 2pm.
After the hearing resumed, Pakistan Bar Council Executive Committee Chairman Hassan Raza Pasha came to the rostrum to speak up and urged the court to form a full bench on the case.
However, CJP Bandial said that they will hear the bar later.
But Pasha stated that the bar was not in support or against anyone. He added that if a full-court bench could not be made then a full-court conference should be summoned.
“We are thinking about this,” said CJP. He added that the relations between the judges were fine.
The top judge also stated that the media at times would also say things which were not true.
“I will hold some meetings after the hearing. It is expected that Monday's sun will rise with good news,” remarked the CJP.
At this point, AGP Awan came to the rostrum and CJP Bandial asked him to speak.
The government’s top lawyer requested the court to let the political temperature come down, adding that it needed to be done all over the country.
The CJP asked the AGP what he had done regarding the directives to lower the political temperature.
“Only time is needed. [Political] temperature can only decrease down with time,” said AGP Awan.
CJP Bandial observed that the 90-day limit for holding elections in Punjab and Khyber Pakhtunkhwa was ending in April. He added that the president gave the date for elections after the 90-day limit ended.
“If the president had an idea about the situation then he would not have given the April 30 date,” said the CJP. He added that the issue before the court was the date of October 8.
“The court did not sit to create problems. Tell the court a solid reason or start a dialogue,” said the CJP. He added that one party chairman was giving assurances, saying that the government will have to forget the past.
“The assembly’s time was ending in August and if there are talks between the government the opposition then they will take a break for some days,” said the CJP. He added that if the dialogue was not held then they would play their constitutional role.
“After seeing the court decision, you will say that it is an independent decision. Each side's points will be mentioned in the decision,” said the CJP. He then asked the AGP about the court’s directives of reducing expenses.
The CJP also added that he was asked to reconstitute the bench, adding that if he wanted he could have changed all the judges.
“If you want to do that, that would be an invasion of our privacy,” said the CJP.
The AGP then interjected and stated that the CJP had stated that the judges did not recuse themselves from the hearing.
“I did not say anything about judges’ recusal,” clarified the CJP.
“We judges will discuss the matter of stopping the hearing,” said the CJP. He then added that the internal discussions of judges should not be done in public.
He then directed the AGP to argue on decreasing the political temperature, adding that they will resolve these issues soon.
Meanwhile, AGP Awan then requested the formation of a full court bench to hear the case.
Once the AGP made the request, the CJP gave him the go-ahead to argue about it.
“Full court issue was on my mind; however, before forming the full court, it is necessary to look at some factors,” said the CJP. He added that one factor was that routine cases are not affected as the number of cases was rising daily.
The CJP also explained that at times judges were not in the same city as they were visiting the registries of the apex court in other cities.
“While forming the nine-member bench, I thought that all the judges from senior to new should be represented,” said CJP Bandial. He then talked about members of the initial nine-member bench formed to hear the Punjab and Khyber Pakhtunkhwa election case.
He also added that the full court case dealt with Justice Qazi Faez Isa’s reference from 2019-2021 and it had to face repercussions for it.
The CJP said that he found Justice Athar Minallah to be in line with the Constitution and Justice Mansoor Ali Shah, Justice Yahya Afridi, and Justice Munib Akhtar were constitutional experts. Justice Ahsan is also an expert on the Constitution, he added.
“You may ask why Justice Sayyed Mazahar Ali Akbar Naqvi was included in the nine-member bench,” said CJP.
At this, the AGP said, "if the CJP wishes to talk about it then he may do so".
“Added Justice Mazahar Naqvi [to bench] to send a silent message to someone,” said the CJP.
CJP Bandial then went on to say that a political case was ongoing which was why the judges were being targeted. He added that judges were being targeted based on hearsay.
“Supreme Court was united and is still so on some matters,” said CJP Bandial and added, "No one sees how the judiciary is affected".
“I am being asked to punish one more judge. First go and evaluate those facts,” said CJP Bandial.
The CJP also added that judges were being targeted based on audio leaks.
“If you talk about the law, I will listen as a judge. If you talk about my judges, then you will have to face me,” said CJP Bandial.
The CJP also added that judges were being targeted based on audio leaks.
“If you talk about the law, I will listen as a judge. If you talk about my judges, then you will have to face me,” said CJP Bandial.
Meanwhile, AGP told the court that he would finish his arguments soon. But on this ECP’s lawyer, Irfan Qadir intervened and said that his client’s point of view was not heard.
However, the CJP asked Qadir to let the AGP complete his arguments.
“I only want to speak for three minutes. I have to sit for hours if you can get emotional then I can too,” said Qadir.
“We will listen to you. You spoke about three minutes,” the chief justice told Qadir.
“Not three minutes, I will be even briefer,” Qadir said.
The CJP then asked the attorney general to talk about the case saying he got emotional because of the random conversation,” he said.
The CJP said the country was facing a security problem and half of the polling stations were either highly sensitive or sensitive. “It isn’t enough to just say there is terrorism in the country,” he said and also remarked, “Terrorism has been around since the 90s”.
“The court was told that the forces are busy at the border. This has to be looked into as well,” the chief justice said.
The attorney general said that he had seen the court’s circular and read Justice Mandokhail’s note as well. He added that the second point was about the ratio of the March 1 judgment and the third point was based on the decision of March 1.
“The basis of the current application is the court order of March 1,” he said and added that two members of the nine-member bench voluntarily recused themselves.
“Who told you that two judges recused themselves from the bench? Read the court’s February 27 order, where is it written?” CJP asked the attorney general.
He then went on to tell the attorney general to speak about security and funds.
AGP Awan said he would give his arguments after the CJP was done listening to political parties. “I’ll inform the court about the country’s economic situation,” he said.
During the hearing, Justice Munib Akhtar questioned the attorney general whether elections could be postponed till October 8.
Meanwhile, the CJP said that the bench would also give an audience to Farooq Naek, Akram Shaikh, and Kamran Murtaza. “We want to listen to Pakistan’s state first.”
The AGP said that the matter was no longer about Rs20 billion, but of the entire economy. He added that the country was facing a deficit of Rs1,500 billion. “The central bank interest rate can go up to 22% by June 30. An increase in interest rate also hikes up debt,” he said.
“Does the new rate of interest also apply to past loans?” the chief justice asked.
“How much money does the government have at the moment? How much money is there in the federal consolidated funds? How much will the deficit increase if Rs20 billion is spent?” Justice Akhtar asked.
Justice Akhtar asked the AGP how much would be the increase from the Rs20 billion in the Rs1,500 billion deficit. He added that election expenses were probably less than 1% of the deficit.
The AGP responded saying that revenue of Rs170 billion was expected [as a result of taxation measures introduced] in the supplementary budget if fully collected.
“Who controls the federal consolidated funds,” Justice Akhtar asked. “The funds are under the finance ministry’s control,” the AGP responded.
The CJP asked the AGP would the budget deficit end by October. The AGP said Pakistan was likely to receive funds after the revival of the bailout agreement with the International Monetary Fund (IMF).
AGP Awan said that he hadn’t thought of polls being held in the current fiscal year.
“Will the court accept the request to form full court request on this occasion?” he asked.
“It seems you are getting emotional. We will provide time, if you need,” Justice Akhtar told the AGP.
“The court should consider the request for full court in the meantime,” the AGP said.
The court, the CJP said, held a full hearing for three days. “The precious time that has passed will be lost by adding more judges. It will take time for new judges to hear and understand the case from the scratch.”
The court, the CJP said, held a full hearing for three days. “The precious time that has passed will be lost by adding more judges. It will take time for new judges to hear and understand the case from the scratch.”
Justice Bandial said that the ECP’s counsel had shared the statistics and the court needed confirmation from the government.
“The Supreme Court rules are clear that a bench of more than two members will hear cases falling under 184(3). The parties before the court are those who run the government,” the CJP said.
The top court has summoned the defence secretary and finance secretary for the upcoming hearing.
AGP Awan said that he had been instructed to discuss three issues. “The parties should be given the opportunity to deliberate till Monday,” he requested.
Justice Akhtar asked the AGP to read the court judgment of the 2021 suo motu notice and added that it was the right of every party to request a full court bench.
“It is a very serious allegation if the government gives the impression that favourite benches are being formed,” he said.
Justice Akhtar said that the Supreme Court had declared the chief justice as the bench master of the roster.
AGP Awan said that the government did not intend to mention favourite judges. “The temperature outside the court is very high.”
He added that no one would be able to object to the decision written by all the judges.
Justice Akhtar said that the judges were sitting in a court and not a beauty contest.
Irfan Qadir, the ECP’s lawyer, said that the electoral authority also wanted to talk about the law.
Justice Akhtar, while addressing Qadir, said: “You probably want to talk for three minutes and leave for Lahore.”
Justice Bandial said that as per the Constitution, elections should be held within 90 days if the assembly had been dissolved. “If elections can’t be held in 90 days then how many more days will be required?” he asked adding that the court needed to consider this point.
The CJP said that no regulation or law allowed the constitution of a full court.
“An application can only be submitted to constitute a full court,” AGP Awan said.
The chief justice asked the AGP that the nation wanted to know when would the polls be held and sought a guarantee from all parties to remain peaceful until the elections.
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