With some saying it isn’t wanted, many of the attorneys say a full courtroom would lend legitimacy to a Supreme Courtroom that may be very publicly divided.
The case on the Election Fee of Pakistan’s (ECP) postponement of the elections in Punjab, being heard by the Supreme Courtroom took an surprising flip when two judges recused themselves from the bench in as many days, resulting in calls from authorities officers for the chief justice to revive order.
Justice Aminuddin Khan recused himself from listening to the case on Thursday, and on Friday Chief Justice of Pakistan (CJP) Umar Ata Bandial reconstituted the bench with 4 of the remaining judges, specifically Justices Ijazul Ahsan, Muneeb Akhtar, Jamal Khan Mandokhail and himself. Nevertheless, the bench was rocked by one more departure when Justice Mandokhail withdrew, saying he was a “misfit” on the bench. Then it was as much as the three judges: CJP Bandial, Justice Ahsan and Justice Akhtar to listen to the case.
Authorities officers have been swift to resume their demand for a full courtroom. Inside Minister Rana Sanaullah mentioned the present state of affairs required the formation of a full courtroom to listen to the matter. Defence Minister Khawaja Asif mentioned a full courtroom is the “solely means out”.
However is it?
Daybreak.com reached out to authorized consultants to weigh in on the problem.
Barrister Asad Rahim Khan said that the formation of a full court in the poll delay case was not needed. “If there is any complicated constitutional case, talks can be held for the formation of a full court, but not in this case,” he told DawnNewsTV.
He said it was already established (in the Constitution) that elections must be held within 90 days of the dissolution of an assembly. The barrister said the debate on the issue was being “unnecessarily dragged on”.
“There is no legal standing for it. As far as the judge (Justice Mandokhail) is concerned who said he is a ‘misfit’ on the bench, it is his viewpoint and since he has recused himself from the bench, it is hoped that Pakistan may move towards stability and the judiciary takes a decision on it soon,” the legal expert said.
He underlined that it was the CJP’s prerogative to form a bench as he deemed appropriate. “No petitioner or any government lawyer can stop that.”
He recalled a decision of a five-member SC bench wherein the CJP was referred to as “the master of the roster”, which he said was enough to assess the authority of the top judge.
The barrister noted that the formation of a full court would cause no harm, but this case was neither one of first impression, nor of constitutional complexity, and that the core question — elections within 90 days — had already been decided.
He added that benches cannot be formed according to the wishes of petitioners, as it would create the unfortunate precedent of demands for full benches for each politically charged case, even as caseloads soar.
Barrister Rida Hosain was of a similar opinion. She told Dawn.com that “there is an obvious and very public divide in the Supreme Court.
“While the chief justice is hearing a constitutional case that will decide the fate of our democracy, he is being accused of running a one-man show. Judges are, through their decisions, casting aspersions at one another.
“There is merit in the position that decisions of a full court will have more moral authority, however, in this case, it would only further delay proceedings, and ultimately the date of the elections.
“The case before the court is a simple one that is being made needlessly controversial. The court has to decide whether the ECP can alter the election date to October 8. The Constitution is clear as day that elections must be held within 90 days of dissolution.”
She added that while some were suggesting that only a decision of a full court will be acceptable, “the acceptance of the Supreme Court’s decisions cannot be made conditional upon the formation of a full court. Parties are bound by the decisions of the court regardless of whether or not they like them.”
Hosain added that “wisdom, in this case, lies in following the letter and the spirit of the Constitution.”
Other legal experts had a different view. Laywer Salahuddin Ahmed was of the opinion that a full court was essential from day one.
“Only a full court verdict will carry the moral and public legitimacy necessary not only to conclusively resolve this dispute but to ensure enforcement of the eventual court orders,” he said.
“Unfortunately, despite repeated requests, a full court was not formed in the vote of no-confidence case, nor the 63-A case, nor the Hamza Shahbaz/Parvez Elahi case, nor the sooner spherical of this election case. As an alternative, for all these instances, benches have been shaped together with nearly the identical judges each time. That has introduced us to this sorry move. In such a polarised surroundings, the SC can’t stay blind to the basic principle that justice shouldn’t solely be completed however be seen to be completed.”
As for the matter of a visual divide within the apex courtroom making the listening to troublesome he mentioned, “certainly it’s not unimaginable for judges to comply with a code of conduct for administration of the case that can enable all events to current their case in a specified time with minimal doable interventions from any member of the bench.”
Lawyer Abdul Moiz Jaferii was also of the opinion that “the election delay case should never have been heard by less than a full court.”
Elaborating, he said: “The entire controversy within the Supreme Court is based upon a disagreement between judges about the technicalities of whether a suo moto should have first been taken and the manner in which it was taken and the way the first bench was put together.
“This has gone on to become a deeper dispute about the chief justice’s preferences of particular judges when making benches to hear constitutionally critical cases. And his disregard for other more senior judges.
“None of the judgements given in this entire elections saga dispute that the constitution is clear regarding the 90 days deadline for elections post the dissolution of assemblies. The Justice Shah and Mandokhail minority opinion, which calls itself a majority opinion, is also clear on what it feels the way forward is: that the single bench LHC decision [which mandates the ECP to hold elections within 90 days] is binding and within the subject.”
Jaferii mentioned that what was “most irritating” about the entire challenge was that it was “rooted in administrative disagreements” and was “tainting the notion of your entire Supreme Courtroom, the integrity of particular person judges is being publicly questioned to swimsuit political designs”.
He added that “none of this is able to have occurred had CJP Bandial introduced a little bit of much-needed democracy and transparency to the way in which he runs the Supreme Courtroom.
“These selective smaller benches are already getting used as excuses to dispute what the order of the courtroom really is. The courtroom’s time is being wasted on such minutiae when the matter of 140 million folks and their proper of illustration is being tampered with.”
Lawyer and columnist Hassan A. Niazi argued that it was time to have a full courtroom listening to to resolve this inner dispute and announce an election date.
Elaborating on his remark, he said that forming a full courtroom listening to on the problem would additional resolve a number of points that had made the election date listening to “controversial”.
Niazi mentioned {that a} full courtroom would first authoritatively resolve the prevailing query of whether or not the preliminary judgment on the election case was by means of a majority of 3-2 or 4-3 which had triggered polarisation throughout the courtroom itself.
Second, he mentioned that it could eradicate all arguments that the CJP was intentionally excluding judges who could probably dissent from his views. Lastly, Niazi added that if all judges within the Supreme Courtroom authoritatively said that the Structure demanded that elections be held in 90 days it could set a precedent that may conclusively put the problem of delaying elections at the moment or sooner or later to relaxation.
“It’s important that justice isn’t solely be completed by the courtroom however it needs to be seen to be completed in an neutral method by the folks of Pakistan,” he mentioned, including that he was of the opinion that at this level, “a full courtroom is one of the best ways to make sure this occurs.”
Lawyer and columnist Basil Nabi Malik said the problem was of credibility.
Malik told Dawn.com: “We can talk for days on end about the mess we are in, but frankly, of all the issues confronting the Supreme Court today, the legal issues are the least of their worries.”
Malik expressed concern about the court’s divisions, noting that they were “extremely public.” “A full court hearing for this matter may not have changed that, but it would have certainly lent credibility to any decision, unanimous or otherwise, that would have resulted from it,” he added.
“Considering the widespread perception of bias and prejudice that has plagued this bench, and its slightly moderated combinations and permutations, it was important that the Supreme Court, in this climate of polarisation, rise above its internal fissures to address an issue which affects millions of people. This is perhaps why the call for a full court hearing was all the more important.”
He said that firstly, it would have shown that despite internal differences, the Supreme Court could rise above its differences for the greater good. Secondly, no judge could reasonably expect political foes to bury the hatchet when the Supreme Court itself looked internally divided to such an extent that the said justices could not even perceivably sit in the same room. Thirdly, a full court hearing would afford the issue the importance that it deserved.
“More judges are better than fewer, and that is because a greater number of judges allows a case to receive the collective wisdom of the many as opposed to few,” he said. “This alone should have been sufficient to concede to such a request.”
In light of the recent judgement in the Hafiz-i-Quran case, and the recusals of the judges “it seems that a full courtroom listening to is unlikely and considerably inconceivable now”. “That is unlucky and one thing that was wholly avoidable.”
