By Special Correspondent
ISLAMABAD: The newly-constituted three-member bench of the Supreme Court will today resume hearing the case pertaining to the delay in the elections to the provincial assemblies of Punjab and Khyber-Pakhtunkhwa amid a distrust by the PDM against the Chief Justice-led three-member bench and heightened political temperature in the country.
The court had, on Friday, dismissed the government’s plea to constitute a full court on the issue. The three-member bench headed by Chief Justice of Pakistan Umar Ata Bandial, comprising Justice Ijaz-ul-Ahsan and Justice Munib Akhtar had dismissed the request put forward by Attorney General of Pakistan Mansoor Usman Awan on behalf of the federal government.
Initially a five-member bench comprising Chief Justice Bandial, Justice Ejaz-ul-Ahsan, Justice Munib Akhtar, Justice Amin-ud-Din Khan, and Justice Jamal Khan Mandokhail was constituted to hear the PTI plea. It held three hearings on the issue from Monday to Wednesday. The bench was reconstituted to three-member Friday after two of the five worthy judges of the original five-member larger bench recused themselves from the hearing. Justice Amin-ud-Din Khan was the first one to recuse himself, followed by Justice Mandokhel which led to the dissolution of the bench twice.
To add to the ongoing controversy at the Supreme Court, a SC bench headed by Justice Qazi Faez Isa had, on Wednesday, ordered postponing the cases being heard at the apex court under Article 184(3) of the constitution until the amendments are made in the Supreme Court Rules, 1980 regarding the discretionary powers of the chief justice to constitute benches. Justice Amin-ud-Din Khan concurred with Justice Isa, who authored the order, while Justice Shahid Waheed dissented with the majority decision of 2-1 in a suo-moto case pertaining to 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 polls delay case was dissolved following Justice Amin-ud-Din Khan’s recusal in line with Justice Faez Isa’s order. After the bench stood dissolved, the SC announced that the bench would continue hearing the case sans Justice Khan. When the court assembled on Friday, Justice Mandokhail also recused himself from the hearing.
Judgment disregarded
Before resuming the election case hearing, the Supreme Court on Friday “disregarded” the judgment authored by Justice Isa through a circular issued by Supreme Court Registrar. “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-moto jurisdiction,” observed CJP Umar Ata Bandial in the circular. It noted that the “unilateral assumption of judicial power” in such a manner violated the rule laid down by a five-member judgment.
When the four-member bench assembled on Friday, AGP Mansoor Awan came on the rostrum to speak but Chief Justice Bandial told him that Justice Mandokhail wanted to say something. Justic Mandokhel while recusing himself from hearing the case, told the audience that he kept waiting the order after Justice Amin-ud-Din Khan’s recusal from the hearing. “I received the order at home. I had written a separate note on the order,” Justice Mandokhail said. He then asked Attorney General Awan to read out his note. After the Attorney General read out the note written in the bench’s order, Justice Mandokhail remarked that he was a member of the four-member bench but he was not consulted at the time 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,” Justice Mandokhail added. Later, the court officials announced that a three-member bench will resume the hearing at 2pm in the day.
Pakistan Bar Council
As the hearing resumed, Pakistan Bar Council (PBC) Executive Committee Chairman, Hassan Raza Pasha took to the rostrum to speak up and insisted the court to constitute a full bench on the issue. However, Chief Justice Bandial said that they will hear the bar later. “We are thinking about this,” said the CJP. The top judge also said that the media at times would also say things which were not true. “I will hold some meetings after the hearing. I expect that Monday’s sun will rise with good news,” remarked the CJP.
“Judges being targeted on hearsay”
CJP Bandial said that a political case was going on that was why the judges were being made target. He further said that judges were being targeted based on hearsay. “Supreme Court was united and it remains still so on some matters,” CJP Bandial said and added, “No one sees how the judiciary is being affected”.
Funds remain elusive
During the hearing, Justice Munib Akhtar questioned the AGP whether polls could be postponed till October 8. Meanwhile, the Chief Justice said that the bench would also give an audience to Farooq H. Naek, Kamran Murtaza and Akram Shaikh. “We want to listen to Pakistan’s state first.”
The Attorney General said that the matter was no longer about Rs20bn, but of the entire economy. He further said that the country was facing a deficit of Rs1,500bn. “The central bank interest rate can go up to 22 percent by June 30. An increase in the interest rate also increases debt,” he said.
“How much money does the government have in the exchequer at the moment? How much money is there in the federal consolidated funds? How much will the deficit increase if Rs20bn is spent?” Justice Munib Akhtar enquired. Justice Munib Akhtar asked the Attorney General how much would be the increase from the Rs20bn in the Rs1,500 bn deficit. He further said that election expenses were probably less than 1 percent of the deficit.
“Who controls the federal consolidated funds,” Justice Akhtar asked further. “The funds are under the control of finance ministry,” the Attorney General replied.
“Will budget deficit end by October 2023?”
The Chief Justice asked the Attorney General would the budget deficit end by October this year. The latter replied Pakistan was likely to receive funds after the revival of the bailout package with the IMF and added he hadn’t thought of polls being held in the ongoing fiscal year.
“You are getting emotional”
The AGP asked, “Will the court accept the request to constitue full court on this occasion”? “It looks you are getting emotional. We will provide time, if you need,” Justice Munib Akhtar told the AGP.
“Time is precious”
The court, the Chief Justice said, held a full hearing for three days. “The precious time that has passed will be lost by adding more judges in the bench. It will take time for new judges to hear and understand the matter from the scratch.” CJP Bandial said that the Election Commision’s counsel had shared the statistics and the court required confirmation of the same 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 Chief Justice said. The top court then summoned the defence secretary and finance secretary for the upcoming hearing.
Beauty contest
Justice Akhtar said that the SC had declared the chief justice as the bench master of the roster. In response to the AGP’s demand to form a full court, Justice Akhtar further said that the judges were sitting in a court also and not in a beauty contest.
CJP Bandial said that as per country’s constitution, polls should be held within 90 days if the assembly had been dissolved. “If elections can’t be held within 90 days then how many more days will be required?” he enquired adding that the court required to consider this very point. The Chief Justice said that no regulation or law allowed the formation of a full court.
The chief justice told the Attorney General that the nation wanted to know when would the polls be held as it sought a guarantee from all the political parties to remain peaceful until the elections.
