ISLAMABAD: Taking a stand, three parties from the ruling coalition stated before the Supreme Court on Friday that two members of its nine-judge bench, hearing the suo motu case about delay in the announcement of a date for elections to the Punjab and KP assemblies, should recuse themselves from the case.

The PML-N, JUI-F and PPP further said that the two judges should never be part of any bench hearing any case involving these three parties and their leadership.

“At the very outset, [the] PPPP, PML-N and JUI-Pakistan with utmost respect submit that it is apparent from the Feb 16, 2023 [order] passed by two-member bench, comprising Justice Ijaz-ul-Ahsan [and] Justice Sayyed Mazahar Ali Akbar Naqvi, that they have already disclosed their mind,” said a signed document furnished by senior counsel Farooq H. Naek, Mansoor Usman Awan and Kamran Murtaza, respectively, with the court.

The counsel, however, hastened to add that the ruling parties did not have any personal reason or grievance against any of the two judges, but it would be befitting they should not hear the matter.

• PML-N, PPP, JUI-F say Justice Ijaz and Justice Naqvi ‘must never hear their cases’ • SCBA picks Bhoon in place of Zuberi to attend proceedings

Chief Justice of Pakistan (CJP) Umar Ata Bandial, who heads the larger bench, observed that though ordinarily citizens approached the court, this time the one knocking at the doors of the Supreme Court was the Constitution itself.

Would it not be appropriate if the case under Article 184(3) of the constitution be heard by a full court consisting of all the judges of the Supreme Court, observed Justice Athar Minallah, a member of the bench.

“I bow before the observation,” Mr Naek replied.

Mr Naek said he would also request for the same, but wondered “couldn’t we wait for a while in view of the present political and economic uncertainty”.

While talking to the media after the hearing, he said that even if the full court was constituted, PDM and PPPP would be sticking to their demand that the two judges should not be part of the larger bench.

During the proceedings, Justice Jamal Khan Mandokhel observed as to why the matter may not be taken to parliament where political parties themselves can resolve it and find out a solution.

The counsel said he would convey the observations to the parties’ leadership.

After the hearing, Chaudhry Faisal Fareed told reporters that PTI was happy with the present constitution of the bench since it respects all the judges as well as the institution of the judiciary as a whole.

‘Alarming note’

The joint statement, which was read out by Mr Naek, highlighted Justice Mandokhel’s note by descri­bing it as an “alarming note” in which the judge during the hearing on Thursday had described the initiation of suo motu notice as “not justified”.

The counsel said the leadership of the three political parties was of the view that in the interest of justice, fair play and to protect the fundamental right to fair trial and due process as guaranteed under Article 10A of the constitution, Justice Ahsan and Justice Naqvi may kindly abstain themselves from hearing the suo motu case as well as the connected petitions.

Mr Naek also read out the order of the two-judge bench as well as the CJP’s order on initiating the suo motu jurisdiction.

When the counsel tried to read Justice Mandokhel’s note, the CJP wondered how he had got the note when he (the CJP) himself did not have it.

The counsel explained that when Justice Mandokhel was reading his note on Thursday, the same was noted by his fellow colleagues present in the Courtroom No 1.

The chief justice, however, observed that the court would hear the parties on the maintainability of the case when the hearing would be resumed on Monday since Friday’s proceedings were only concerned with recording the presence of the parties before it.

Mansoor Usman Awan reminded the court that under Article 176, the definition of Supreme Court includes the CJP and all other judges of the apex court, adding the question before the court should be heard by the full court.

SCBA Meeting

Meanwhile, in a significant development, the SCBA in its fifth meeting of 25th executive committee at Lahore, attended by nine members out of a total of 17, approved a resolution that Muhammad Ahsan Bhoon instead of SCBA President Abid Zuberi would represent the association before the court in the suo motu hearing.

The resolution deplored that the president and Secretary Muqtedir Akhtar Shabbir had ignored the executive committee on many occasions when their presence was necessary, especially when the delegations of China and Turkiye visited the SCBA. Besides, it said, a meeting was arranged with former chief minister Punjab in the absence of the executive committee which showed a clear pick and choose policy adopted by the SCBA president.

SBC’s objection to bench

Similar to the PBC’s demand, Sindh Bar Council Vice Chairman Zulfikar Ali Khan Jalbani expressed reservation over the constitution of the nine-judge bench by excluding senior puisne judge Justice Qazi Faez Isa and Justice Sardar Tariq Masood.

He said the power of fixation of roaster and cases should not rest exclusively with the CJP.

In a statement, Mr Jalbani and chairman executive committee Inayatullah Morio said that Justice Ijaz-ul-Ahsan and Justice Naqvi should rescue themselves from the bench as clear lack of confidence has been shown in them by the different parties.

The SBC urged the CJP to take concrete steps to redress the impression of recent practice of constitution of benches of his choice, especially in political cases.

Ishaq Tanoli in Karachi also contributed to this report

Published in Dawn, February 25th, 2023