Not aware of 26th Amendment: Don’t tell court what it can hear, what it can’t, says CJP

ISLAMABAD: The Supreme Court (SC) Monday dismissed review petition of Pakistan Tehreek-e-Insaf (PTI) after its counsel refused to argue till constitution of a larger bench comprising five judges for hearing the matter against the apex court verdict of January 13, regarding its intra-party elections.

A three-member SC bench, headed by Chief Justice Qazi Faez Isa, and comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali, heard the PTI review petition. Barrister Ali Zafar, a counsel for the PTI, contended that after the coalition government had passed the contentious constitutional package through the 26th constitutional amendment, whereby only a constitutional bench could hear such cases, the incumbent bench was not competent to hear the instant review petition.

The chief justice, however, remarked that he did not know about any such amendment, as the matter had not been brought to his notice. He told the counsel the court should not be told what it could hear and what not, and dismissed the review petition holding that the counsel stated that he did not want to argue the case.

On January 13, the bench, after accepting the appeal of Election Commission of Pakistan, had set aside the order of Peshawar High Court (PHC) that had overturned the ECP decision revoking the cricket bat, electoral symbol of the PTI and rejecting its intra-party elections.

On Monday, during the course of hearing Hamid Khan, counsel for the PTI, submitted before the court that he had filed an application in their review petition, seeking constitution of a larger bench, consisting of at least five judges.

The court, however, rejected the PTI plea, holding that larger bench could not be constituted for hearing a review petition, and asked Hamid Khan to argue and point out any illegality in the main judgment.

Hamid Khan contended that he did not want to argue before a bench that is biased towards the party. “Where did you mention in your application that we are biased,” the CJP asked Hamid Khan, who replied that he stated it in front of the court.

The court further noted down in its order that it gave an opportunity to other counsel for the petitioner including Barrister Ali Zafar, Barrister Gohar Ali Khan, Niazullah Niazi etc., but only Barrister Ali Zafar was present in the court and he also did not want to argue the review petition.

When the chief justice was dictating the court’s order, Hamid Khan, counsel for the PTI, asked him that reasons for his not giving arguments should also be noted down in the order, that the bench was biased towards the PTI.

“Write down in the order that I refused to argue before a highly biased judge,” Hamid Khan told the chief justice. “Don’t tell us what to write in court’s order and what not,” the CJP replied to Hamid Khan.

Justice Muhammad Ali Mazhar, however, asked the counsel that he did not mention in his application that the instant bench was biased towards them. Hamid Khan replied that as he had moved a CMA with a prayer that the matter be referred to a committee, established under the Supreme Court (Practice and Procedure) Act 2023 for constitution of a larger bench, not less than five judges of the apex court; that was the reason that they did not want this bench to hear their review petition.

The court, however, did not mention in its order what was demanded by Hamid Khan, and noted in its order that no illegality had been pointed out by the counsel in the court’s judgment, delivered on January 13, 2024 and thus the review petition was dismissed.

Earlier, at the outset of hearing, CJP Faez Isa told Hamid Khan that the instant review petition was filed on February 6, while they had passed the judgment on January 13; that means the PTI had accepted the judgment and filed the review petition late.

Hamid Khan submitted that according to the judgment, passed by the apex court in Sunni Ittehad Council (SIC), the Election Commission had no locus standi to file an appeal against the PHC judgment.

The chief justice observed that it was a different case and asked the counsel to argue on his review petition and point out the error in the judgment, delivered on January 13 regarding the PTI intra party election.

Hamid Khan contended that the judgment of full court comprising 13 judges was binding upon this bench hearing the instant review petition. The chief justice said a review petition against the reserved seats case was still pending; therefore, they could not look into such a case where a review petition was pending against it.

“Why a party failed to conduct an intra-party election, and why you are scared of holding it,” the CJP asked the counsel. “We held elections, but you had set aside it,” Hamid Khan replied. Justice Musarat Hilali also inquired from the counsel as to why they were delaying holding of intra-party elections.

“The court gave verdict on January 13, while general election were scheduled for February 8; then why you did not hold intra-party elections again,” Justice Hilali asked the counsel. Hamid Khan replied that when the court gave verdict on January 13, the same day, the ECP was allotting the election symbols.

“When Niazi Sahib was prime minister, he was issued notice for holding intra-party elections,” Justice Musarat Hilali observed. The CJP asked Hamid Khan that he could have approached the ECP for seeking time for holding intra-party election till general elections.

Hamid Khan replied that he had told the court, but he was informed that “if you would seek an adjournment, then the verdict of Peshawar High Court will be suspended”. Hamid Khan submitted that snatching an electoral symbol from a political party was tantamount to depriving it of fundamental right.

Justice Muhammad Ali Mazhar told Hamid Khan that their party’s constitution is very much clear about its intra-party elections. “Either you should change your party’s constitution or ensure holding of intra-party elections as per your party’s constitution,” Justice Mazhar told Hamid Khan.

Justice Mazhar observed that as per law, if any party fails to hold intra-party elections, consequences can then follow, adding that consequences are mentioned in the constitution. “Whether you want to continue the case or not,” the CJP asked Hamid Khan, to which he replied that until and unless large bench was constituted for the instant review petition, he would not argue.

“Say what you want to say in my face instead of saying it on television behind my back,” the CJP asked Hamid Khan. “Now I say which I did not want to say,” Hamid Khan replied and submitted that he could not argue before an extremely biased person. Later, the court dismissed the review petition, holding that no illegality was pointed out by the counsel for the petitioner.