CJP gets misty-eyed in poll delay case hearing

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial got emotional during the hearing of the Punjab and Khyber-Pakhtunkhwa general election delay case on Friday, saying that judges of the apex court were being targeted based on hearsay or leaked audios.

Heading a three-member bench comprising himself, Justice Ijazul Ahsan and Justice Munib Akhtar, he said that they were being targeted for two years. An injustice was being done to them by targeting them and their families as well, he remarked. He said one of their colleagues had to appear before the court in a tax-related case, which was forwarded to them.

Similarly, the CJP continued that a former judge of the Supreme Court, Justice Iqbal Hameedur Rehman, was targeted by lawyers and consequently he had to tender his resignation. He said in a sentimental tone that one day Justice Iqbal Hameedur Rehman met him and informed him that a reference had been filed against him in the Supreme Judicial Council (SJC) with the allegations that he had made some illegal appointments. “Now as the inquiry has been initiated by the SJC into the allegations and if the Council issues a show-cause notice, then how he could face his (late) father,” the CJP quoted Iqbal Hameedur Rehman.

“Justice Iqbal Hameedur Rehman was in tears and consequently, due to the pressure of the legal fraternity, he resigned from the office,” the CJP recalled adding that Justice Rehman was a competent judge.

He remarked that a political case was ongoing in the court, which was why the judges were being targeted. “The Supreme Court was united and remains united on some matters,” he said and added, “No one sees how the judiciary is affected [due to political cases hearing]. Now I am being asked to punish another judge,” the Chief Justice said and asked that one should first examine the evidence.

The Chief Justice said that the Constitution was very important for them, for the nation, for society as it held the Federation together and it also kept alive democracy. “Today when you go to parliament you find people addressing the parliament who were till yesterday in captivity, imprisoned, declared traitors. They are now talking over there, and being respected because they are representatives of people,” the CJP remarked. “Whatever I did was done with honesty, and in accordance with the law,” the CJP added.

At this, Irfan Qadir, counsel for the Election Commission, came to the rostrum and told the chief justice that if he was concerned about Justice Iqbal Hameedur Rehman, he should have helped him and removed his stress as well. “Your lordship did not get sentimental at that time but showing that stress today,” Irfan Qadir told the CJP, adding that if the chief justice could get sentimental, then they could as well. He told the chief justice to avoid blaming the lawyers, adding that judges ought to give decisions in accordance with the law and Constitution but not in passion.

Addressing the counsel, the CJP said: “If you talk about the law, I will listen as a judge. But if you talk about my judges, then you will have to face me.” Earlier, the newly constituted three-member SC bench rejected the government’s request to form a full court on the Punjab and Khyber-Pakhtunkhwa election delay case. The bench rejected the request, put forward by Attorney General for Pakistan (AGP) Mansoor Usman Awan on behalf of the government. The initial five-member bench comprising CJP Bandial, Justice Ahsan, Justice Akhtar, Justice Aminuddin Khan, and Justice Jamal Khan Mandokhail was formed to hear the case. It held three hearings on the case from Monday to Wednesday. The three-member bench was formed on Friday after two of the five judges of the original five-member larger bench recused themselves. Justice Aminuddin Khan was the first member to recuse himself, which led to the dissolution of the bench on Thursday. 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 amendments were made in the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches. Justice Aminuddin 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.

After the dissolution of the bench, the apex court announced that the bench would continue hearing the case without Justice Khan. But when the court met on Friday, Justice Mandokhail also recused himself from hearing the case. 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 list before the court and invokes its suo motu jurisdiction,” observed CJP Umar Ata Bandial in the circular issued on Friday.

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 based on 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.

When the bench assembled on Friday, 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 Aminuddin 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 on 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.

Later, the court announced that a three-member bench would resume the hearing at 2pm. After the hearing resumed, Pakistan Bar Council Executive Committee Chairman Hassan Raza Pasha 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 the 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 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 and 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,” added 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 made 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 again requested for formation of a full court bench to hear the case. At this, the CJP gave him a 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. The AGP said, “I the CJP wishes to talk about it then he may do so”. “I added Justice Mazahar Naqvi [to bench] to send a silent message to someone,” said the CJP.

Meanwhile, the 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. 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 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 situation 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 22pc 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 Rs1,500 bn deficit increase if Rs20 billion is spent?” Justice Akhtar asked. He added that election expenses were probably less than 1pc 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 if the budget deficit would 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 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.” 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 allowed 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 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 the polls would be held and sought a guarantee from all parties to remain peaceful until the elections.

Separately, taking to Twitter, deposed prime minister and PTI Chairman Imran Khan launched a fresh salvo against PMLN and said: “As PMLN did in 1997 by storming SC to attack CJ Sajjad Ali Shah hearing a contempt petition against Nawaz Sharif, today PMLN is again threatening SC & CJP because they are petrified of elections.” He urged the people to be ready to take to the street if need be for the sake of rule of law, the Constitution, and democracy. “We will be talking to all those political parties who are prepared to stand up against this conspiracy,” he added. Khan also appealed to the lawyers’ community to again take the lead as they did in the 2007 Lawyers Movement to protect “Pakistan’s Constitution and the rule of law.” Meanwhile, PMLN ministers, including Law Minister Azam Nazeer Tarar, Defence Minister Khawaja Muhammad Asif and Interior Minister Rana Sanaullah, called upon the Supreme Court to form a full court bench to hear the polls delay case and a severe trust deficit was visible among the apex court judges. Addressing a news conference along with Minister for Information and Broadcasting Marriyum Aurangzeb and Interior Minister Rana Sanaullah in the federal capital, Law Minister Azam Nazeer Tarar said a full court bench should hear the proceedings of the Punjab and KP elections case.

Interior Minister Rana Sanaullah said: “A fitna [Imran Khan] first created a political and administrative crisis, and now judicial issues and that is why it becomes all the more important to oust him from politics.” He said the top court’s Justice Jamal Khan Mandokhail had recused himself from the bench hearing the case about elections in the provinces of Punjab and KP, after writing a dissenting note. He said the decision of a two-member bench, headed by Justice Qazi Faez Isa on the suo motu powers “cannot be disregarded by the circular of the Registrar’s Office”. He said it expressed no-confidence in judges.

There was no such precedent as the registrar’s circular prevailed in the face of a bench’s decision, he added.