Coalition govt moot expresses ‘no confidence’ in SC bench hearing Punjab polls case

FOOLS_NIGHTMARE · Apr 1, 2023

A meeting of the coalition government and senior political leaders on Saturday expressed “no confidence” in the three-member Supreme Court bench — comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan and Justice Muneeb Akhtar — hearing the postponement of polls in Punjab.

A diminished bench is currently hearing the PTI’s plea against the Election Commission of Pakistan’s (ECP) decision to postpone elections to the Punjab Assembly till October 8. The three-member bench was constituted after the original five-member bench was disbanded following the recusals of Justice Aminuddin Khan on Thursday and Justice Jamal Khan Mandokhail on Friday.

The recusals fuelled calls from government figures to constitute a full court to hear the case while PML-N supremo and former premier Nawaz Sharif hit out at members of the superior judiciary — specifically CJP Bandial and ex-CJP Saqib Nisar — for what he called “selective” benches for suo-motu notices.

Prime Minister Shehbaz Sharif chaired a meeting of leaders of the coalition government today to consider the overall situation and “devise a future strategy for the government” amid the country’s judicial crisis on top of long-ongoing economic and political crises.

According to a press release — available with Dawn.com — from the Prime Minister’s Office (PMO), PM Shehbaz addressed the meeting via video link from Lahore.

“The meeting expressed no confidence in the three-member bench headed by the chief justice, Justice Ijazul Ahsan and Justice Muneeb Akhtar and demands that the present court proceedings be terminated by accepting the four-judge majority judgment of the suo motu no. 1/2023,” the press release reads.

“The sad fact is that the chief justice of the Supreme Court wants to impose the decision of the minority on the decision of the majority. This conduct is not only a serious constitutional and political crisis in the country but also a clear example of deviation from the Constitution and prevailing legal procedures, which is also a clear violation of the basic concept of the division of powers of the state.”

The meeting was referring to the Supreme Court’s March 1 3-2 verdict that elections in Khyber Pakhtunkhwa and Punjab — both of which have been under caretaker governments since the provincial assemblies were dissolved in January — should be held within 90 days.

The bench was reconstituted to a five-member bench after four judges from the initial nine-member bench had raised objections on the constitution of the bench as well as the invocation of the apex court’s suo motu jurisdiction by the chief justice.

The PML-N coalition had rejected the verdict and insisted that it was a 4-3 verdict in the government’s favour. Justice Jamal Khan Mandokhail — part of the original nine-member and reconstituted five-member bench — on Wednesday also said the suo motu hearing was dismissed by a majority of four to three.

The PMO press release further said that the meeting “made it clear that Justice Ijazul Ahsan had already left the bench voluntarily in this case so he cannot be a part of the current bench. The orders of Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail in this regard are clear, all this is also on record.

“The meeting demanded the chief justice to listen to the dissenting voices raised in the benches of the Supreme Court as the head of the institution and immediately hold a full court meeting so the impression of the ‘one-man show’ is done away with.”

Justice Ahsan had distanced himself from February’s suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa.

Meanwhile, Justices Shah and Mandokhail in a detailed dissenting note for the March 1 verdict had called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The PMO press release added that the “division” in the Supreme Court’s thinking was “evident”. “Therefore, the Supreme Court should refrain from issuing controversial political decisions.”

The meeting’s participants demanded “an end to the impression regarding the chief justice and some other judges that they are adopting a special discriminatory attitude in the matters of the PTI.”

It also said that “those who instruct the politicians to sit together and take [collective] decisions are themselves divided. They should create unity and agreement within themselves.”

The meeting also took note of Justices Qazi Faez Isa and Aminuddin Khan’s detailed order on Wednesday which called for postponing all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — until they were legislated upon.

“Conflicting court decisions have created an unworkable and complicated situation. Everyone must also respect the decision of Justice Qazi Faiz Isa’s bench,” the press release stated.

It further said that references filed under Article 209 by the Pakistan Bar Council and other bar associations against a sitting apex court judge should be processed.

The meeting’s participants, as per the press release, also said that the Supreme Court’s verdict last year on a presidential reference seeking interpretation of Article 63-A of the Constitution was a “cause of political instability through which the Constitution was rewritten.”

Law Minister Azam Nazeer Tarar further briefed the meeting about the recent legislation regarding Article 184(3) curbing the powers of the chief justice to take suo motu. He also told the meeting’s members about the “situation arising from the issuance of different judgments and benches between honourable judges in the Supreme Court”.

“The meeting fully supported the recent legislation of the parliament and said that the obstacles in the way of justice have been removed by this legislation. While ending the one-sided approach of justice to the people, they have been given the right to justice, which is the basic purpose of natural justice and the constitution.

“Parliament has clarified its opinion regarding Article 184(3) through legislation. Parliament is a supreme institution whose opinion should be respected by all. The meeting hoped that the president of the state will not obstruct the way of this legislation based on party affiliation,” the press release reads, referring to President Dr Arif Alvi’s assent to the Supreme Court (Practice and Procedure) Bill 2023 after it was passed by the Senate.

On the topic of elections, the meeting’s participants demanded that they be held across the country on the same day and date, adding that this was the “basic constitutional requirement of conducting impartial, transparent and free elections, the deviation from which will plunge the country into a disastrous political crisis”.

The moot agreed that such a situation would be “tantamount to a suicide attack on the country’s economic interests”.

“The meeting made it clear that the conspiracy to create a permanent political and constitutional crisis in the entire country under the pressure of a party attacking state institutions with troops and mobs will not be accepted under any circumstances.

“Unfortunately, an administrative issue has been turned into a political and constitutional crisis. Neglecting economic, security, constitutional, legal and political issues is equivalent to indifference to state interests.

“The special purpose and urgency of giving relief to a party (PTI) appear to be a political agenda. It is also against the Constitution and law and the authority of the Election Commission,” the press release reads.

It added that under Article 218(3) of the Constitution, among other constitutional provisions, the ECP had the power to conduct elections and the apex court “should not interfere” in this regard.

“The same decision has been given by four honourable judges of the Supreme Court in no.1/2023,” the press release stated.

Finance Minister Ishaq Dar also briefed the meeting on the economic situation of the country.

The meeting was attended by PPP co-chairperson Asif Ali Zardari, Foreign Minister Bilawal Bhutto Zardari, Pakistan Democratic Movement chief Maulana Fazlur Rehman, PML-N Senior Vice President Maryam and various other federal ministers and allied political leaders of the government.

Rana Sanaullah hints at submitting reference against 3 SC judges

Meanwhile, Interior Minister Rana Sanaullah said in an interview with Independent Urdu that the matter of the submission of a reference against the judges in the three-member bench “is under discussion but there has been no decision on it yet”.

He added that a decision to submit a reference could be taken since “these three respected judges have a long record of giving decisions that have gone against the PML-N.”

Recalling the verdict in the Article 63-A presidential reference, Sanaullah said that not only the PML-N but every person familiar with the law, including retired judges and chief justices, had said the decision was wrong and “amounts to rewriting the Constitution”.

“It appears that the three gentlemen are [again] insistent on resolving this [Punjab poll] case themselves.

“A bench was made of nine judges and then seven remained, then five, then four and now three are left,” Sanaullah said, highlighting that the three judges had rejected the request for a full court bench and “refused to accept the stance of their fellow judges — who are in the majority”.

The interior minister said that the government “does not have any other option remaining apart from this (filing a reference) so we can register our protest”.

Contention over election date ruling

Friction in the original five-member bench constituted to hear the PTI petition could already be seen on March 29.

During that day’s proceedings, the March 1 Supreme Court judgement regarding elections in KP and Punjab became a bone of contention among top judges, as Justice Mandokhail, while sticking to his guns, wondered about the “order of the court” in the suo motu proceedings.

To date, no “order of the court” has been released and in the absence of such an order, how could April 30 be announced as the election date or its extension till Oct 8, Justice Mandokhail regretted.

In case of a split decision, the order of the court explains, in the end, the “real order” and which judgement was in majority or in minority, Justice Mandokhail observed, adding that even “if we summoned the case file, one will find out there was no order of the court”.

Meanwhile, Justice Akhtar wondered how the “minority could claim to be in majority when the March 1 short order was signed by all five judges”.

Justice Mandokhail wondered whether the note issued by Justice Yahya Afridi and Justice Athar Minallah had vanished in thin air or whether the CJP removed them from the bench. But the CJP observed that “whatever happens behind the chambers should be kept among ourselves”.

Instead of harping on the same point, the CJP observed that the attorney general of Pakistan would assist the court on the footnote mentioned by Justice Syed Mansoor Ali Shah in his dissenting note on March 1 short order and had held that the opinions of Justice Afridi and Justice Minallah will be considered part of the judgement.

Punjab, KP election limbo

The Punjab and KP assemblies were dissolved on Jan 14 and Jan 18, respectively. Under the law, the elections are to be held within 90 days after the dissolution of assemblies.

That means April 14 and April 17 were the deadlines for holding general elections to Punjab and KP assemblies, but the two governors instead of setting dates for elections after receiving the proposal from the ECP had advised the commission to consult stakeholders.

Chief secretaries and inspectors-general of the two provinces during meetings with the ECP had said they were short of police force and talked of terrorism threats, making out a case for putting off elections.

The finance division had also expressed its inability to provide funds and the interior ministry told the ECP that the army and civil armed forces will not be available.

On Feb 17, President Dr Arif Alvi had invited Chief Election Commissioner Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies.

Subsequently, the president unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.

The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.

Additionally, over the past few months, the law and order situation in the country has also worsened, with terrorist groups executing attacks with near impunity across the country.