The principle order speaks of the basic query — who has the authority to repair the date of a provincial election? It then states that this has not been addressed.
The Supreme Courtroom bench, listening to the suo motu case concerning the delay within the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa, abruptly saw its strength reduce from nine to five after 4 of its members “stepped away”.
The transfer, although not unprecedented, is definitely distinctive and sheds gentle on the interior divisions among the many judges of the apex court docket and whether or not the suo motu proceedings had been even justified or not.
Daybreak.com reached out to members of the authorized fraternity to select by means of the contents of the Feb 23 order, together with the extra notes appended by the 4 SC judges.
Notes a must read
“It began with nine members in a bench that promised to be a change from the norm in matters concerning political events,” said lawyer Abdul Moiz Jaferii. “There were more judges here, enough to keep one guessing. Missing were two of the senior most, but at least we had a semblance of a full court.
“Then we had a hearing on February 23, the order of which has just surfaced. And what attention-grabbing studying it makes for,” mentioned Jaferii.
The principle order of the court docket speaks of the basic query — who has the authority to repair the date of a provincial election? It then goes on to state that this has not been addressed or answered.
In accordance Jaferii, this can be a clear oversight and displays the stress beneath which this court docket is working, as a result of it’s precisely this query that Justice Jawad Hasan of the LHC addressed and answered in his decision that the court docket takes observe of earlier.
The principle order additionally speaks briefly ultimately in regards to the questions posed by two members of the bench — Justice Athar Minallah and Justice Mansoor Ali Shah — and the way they relate as to whether the assemblies had been first dissolved illegally or not and are maybe extraneous to the urgency at hand.
It’s maybe this dismissive intent that has led to four additional notes being appended with the order of the court docket — every a should learn.
Leaked audios, irregular proceedings
Both Justice Mandokhail and Justice Shah highlight the irregular goings on in the SC, from the president of its bar association allegedly featuring on a leaked audio tape, in addition to the opposite alleged leaked audio of Justice Naqvi.
Justice Mandokhail then factors out that the president of the Supreme Courtroom Bar Affiliation can also be the lawyer for the policeman, Dogar, whose proceedings had been earlier than the 2 member bench within the first place.
The proceedings, say Justice Mandokhail and Justice Shah, had no nexus with the date of elections however the ECP chief was inexplicably summoned by the two-member SC bench, though he was not celebration to these proceedings.
Justice Mandokhail highlights that that is all irregular, and the note being sent to the CJP itself carries a pre-determination of illegality, which the CJP has solely confirmed and added to. He feels the suo motu is unwarranted.
Justice Shah, in the meantime, states that with this controversy culminating in references being filed towards Justice Naqvi, his inclusion on the suo motu bench is inappropriate. He goes on to emphasize that that is additional ‘nuanced’ after we see different extra senior members of the court docket being excluded from the bench.
‘Preemptive eagerness’
In their respective notes, Justice Yahya Afridi and Justice Athar Minallah allege that the court is showing “judicial preemptive eagerness” as the matter is pending before both the Lahore High Court and the Peshawar High Court.
While Justice Afridi admits that this is no bar to the matter being heard by the Supreme Court, he feels that the circumstances require the court to show judicial restraint and bolster the principle of propriety. Then, he rather inexplicably states that he ‘dismisses these petitions’, but leaves it to the chief justice whether to include him on the bench or not.
Justice Minallah, on the other hand, stresses that a full court must hear this suo motu, as is envisaged in the scheme of the Constitution. His order hints at no desire of recusal. He does, however, note that the court’s order “does not appear to be consistent with the proceedings and the order dictated in open court.”
In the end, we are once again left with five members and a court full of controversy. And it has not even begun.
Unfortunate series of events
Lawyer Basil Nabi Malik termed the latest series of events “utterly unfortunate”.
“Rather than bring together the court to hear a matter of constitutional and public importance, thereby imbuing in the people a sense of confidence in the process, it appears that the CJP has decided to further accentuate and cement the differences, and perceptions of differences, between the justices of the Supreme Court,” he lamented.
“It is being reported that the four judges had recused themselves, which does not appear to be correct from the contents of their additional notes at least. Secondly, the written order seems to be different than that dictated in court, and that also has been indicated by one of the justices who wrote an additional note.
“As such, will this serve the cause of justice? No. Alternatively, will this serve to further erode the credibility of the judicial system. Absolutely yes.”
The beauty of the SC
Not everyone feels the same though. Lawyer Muhammad Ahmed Pansota was of the belief that “to recuse from a particular bench, it is entirely the prerogative of the particular judge who writes the note.
It is not entirely unprecedented, he said.
“Similar situations have occurred in the past where judges have recused from the bench, so it is not completely and entirely something new, but yes, at one point in time, three or four judges recusing themselves from hearing a petition … this is a unique situation and I think it involves a constitutional question.
“But the reasons that have been given by them, now that the judgement is in the field, we can make an opinion about them,” said Pansota.
“I believe Mr Athar Minallah has very clearly said that this does not merit or warrant a case for article 184(3). He doesn’t consider it a matter of public importance and there is no violation of fundamental human rights alongside Mr Mandokhail, who has his own different take on this. But based on the reasons they have extended, I believe they have every right to recuse and this is the beauty of the honourable supreme court.
“That bench comprises a variety of opinions … it has people from all walks of life and varied opinions,” said Pansota, adding that he believed it was good that the judges had expressed themselves and come out as far as the legal arguments were concerned.
“Now, the five-member bench will complete the hearing in two or three days’ time,” said Pansota. “The point of consideration is very simple — who is supposed to announce the date of election? Who, under the Constitution, is obliged to do so?
“This is what the Supreme Court is examining at the moment and if they are able to reach a decision, they will direct that person or institution to announce the elections.”
Elections must be held within 90 days
Lawyer Hassan A Niazi tweeted that the “fractured order … shows the urgent need for clear guidelines on how the suo motu power should be exercised.”
“In its current state the power is exercised too arbitrarily and is against due process,” he said, adding however that all of this shouldn’t take away from the fact that elections must be held within 90 days. “There is no ambiguity, no exception.”
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