Justice Aminuddin Khan of the Supreme Court on Thursday recused himself from a five-member bench hearing the PTIās petition against the Election Commission of Pakistanās decision to postpone polls to the Punjab Assembly till Oct 8.
āAfter yesterdayās judgement, I recuse myself from hearing the case,ā Justice Khan said.
He referred to a
judgement, authored by himself and Justice Isa, issued a day earlier. It noted that the chief justice of Pakistan (CJP) did not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance ā under Article 184(3) ā should be postponed until they are legislated upon.
Justice Khanās recusal was an unexpected development before the court proceedings began today.
The original bench ā which had conducted three hearings on the PTI petition ā was constituted by CJP Umar Ata Bandial. It was headed by the CJP himself and included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Khan.
Contention over election date ruling
During yesterdayās proceedings, the
March 1 Supreme Court judgement regarding elections in Khyber Pakhtunkhwa (KP) and Punjab became a
bone of contention among top judges, as Justice Mandokhail, while sticking to his guns, wondered about the āorder of the courtā in the suo motu proceedings.
Wednesdayās hearing attracted interest among politicians since a number of parliamentarians came to Courtroom No 1.
To date, no āorder of the courtā 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 āreal orderā and which judgement was in majority or in minority, Justice Mandokhail observed, adding that even āif we summoned the case file, one will find out there was no order of the courtā.
Meanwhile, Justice Akhtar wondered how the āminority could claim to be in majority when the March 1 short order was signed by all five judgesā.
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 āwhatever happens behind the chambers should be kept among ourselvesā.
Instead of harping on the same point, the CJP observed that the AGP 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.
The petition
PTIās petition, moved by partyās Secretary General Asad Umar, former Punjab Assembly speaker Mohammad Sibtain Khan, former Khyber Pakhtunkhwa Assembly Speaker Mushtaq Ahmad Ghani and ex-lawmakers of Punjab Abdul Rehman and Mian Mahmoodur Rashid, pleaded that the ECPās decision was in violation of the Constitution and tantamount to amending and subverting it.
In the petition, PTI sought directions for the federal government to ensure law and order, provisions of funds and security personnel as per the ECPās need to hold the elections.
It also requested the court to direct the Khyber Pakhtunkhwa governor to announce the date for elections to the provincial assembly. Last week, KP Governor Ghulam Ali also proposed Oct 8 as the date for elections in the province. Earlier, he had announced May 28 as the date for polls.
The PTI questioned the ECPās authority to āamend the Constitutionā and asked how it could decide to delay elections to any assembly beyond the period of 90 days from the date of dissolution of the said assembly as mandated by the Constitution.
The petition argued that the ECP was bound to obey and implement the judgments of the Supreme Court and had no power or jurisdiction to overrule or review them.
In its March 1 verdict, the Supreme Court ordered to hold the election to the Punjab Assembly within 90 days and that the date be announced by the president. It also directed the authorities to provide funds and security personnel to ECP for the elections, the petition recalled.
The ECP cannot act in defiance of the Supreme Courtās directions as it has done in this case which was illegal and liable to be set aside, the petition pleaded. By announcing Oct 8 as the date, the ECP has delayed the elections for more than 183 days beyond the 90-day limit as prescribed in the Constitution.
The petition said that if the excuse of unavailability of security personnel was accepted this time, it will set a precedent to delay any future elections.
The petition added that there was no assurance that these factors ā financial constraints, security situation and non-availability of security personnel ā would improve by Oct 8.
The āso-called excuseā would mean the Constitution could be held in abeyance every time elections were due, the petitioners feared adding that in the past similar situations have persisted, but elections were held in spite of them.
These situations canāt be used as excuses to āsubvertā the Constitution and deny people their right to elect representatives.
āNot holding elections in case of threats by terrorists will amount to giving in to the threats, which is in fact the aim of all terrorist activities,ā the petition explained.