• Fresh order overrules Justice Isa-led bench that sought halt to all matters under Article 184(3)
• CJP refuses to form full bench, three judges to hear PTI petition seeking polls in Punjab
• Justice Mandokhail says he wasn’t consulted on reconstitution of bench
• Overcome with emotion, Justice Bandial insists judges are united despite differences

ISLAMABAD: The Supreme Court witnessed high drama on Friday, with one more judge recusing himself from the remaining four-member bench hearing a PTI petition against the delay in elections to the Punjab Assembly, with the chief justice making a passionate appeal to the warring parties to forget the past and engage in dialogue.

Justice Jamal Khan Mandokhail withdrew himself from the bench a day after Justice Amin-ud-Din Khan did so on Thursday.

But before Friday’s proceedings commenced, a circular was issued by the registrar office, followed by one-page court order, disregarding the directives of a different three-judge bench that had ordered that all cases instituted under Article 184(3) of the Constitution be postponed by stating that the bench had travelled beyond the case before it.

Thereafter, CJP Umar Ata Bandial constituted a smaller three-judge bench consisting of himself, Justice Ijaz-ul-Ahsan and Justice Munib Akhtar to proceed with the PTI petition.

The CJP also made it clear that the judges were united, despite differences of opinion and, with his voice welling up with emotion, referred to the agony Justice Iqbal Hameedur Rehman suffered when he had to resign from the Supreme Court.

At the outset of the hearing, CJP Bandial announced that Justice Jamal Khan Mandokhail would like to make a statement. Justice Mandokhel announced he was withdrawing from the bench, adding that since he was not consulted before constituting the bench, he would like to recuse himself.

However, before postponing the hearing, the CJP asked Attorney General (AGP) Mansoor Usman Awan to bring the defence and finance secretaries along with him on Monday and hinted that the court might even call the armed forces and issue directives for managing finances to hold elections in Punjab.

“The state of Pakistan cannot remain rudderless and has to reach its destination in accordance with the Constitution,” the CJP observed, adding that elections should be held to hand over government to the people of Pakistan.

Pointing towards the AGP, he observed that the court was not here to make things difficult, but asked the top law officer to come up with good reasons which the court may accept, otherwise it was duty-bound to give a judgement.

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The CJP made it clear that the apex court was not pushing anyone but political parties should resolve issues among themselves or the court would take its own course.

‘Great deal of respect’

When the hearing commenced after Friday prayers, CJP Bandial tried to dispel an impression of discord among the judges. Though he conceded that differences have cropped up, he said relations between the judges were very cordial and despite recusals, they have mutual respect and regard for each other.

“We have sworn allegiance to the Constitution which is very important for us; for this nation, for this society - since it holds the federation together, it keeps alive democracy. Today, when you go to parliament, you find people addressing the parliament who were till yesterday in captivity, imprisoned, declared traitors. They are now talking over there, and being respected because they are representatives of the people,” the CJP observed.

“Unfortunately, political issues have created a hype, which was further fuelled and fanned by the media and press conferences, but we remain calm though perturbed with the fact that some individuals are criticising some judges while others are criticising other judges.

“If only external impression and perception are not there, we will have a peaceful life. This has become a way of life since our friends in the media say something which sometimes was incorrect, but we still respect them since they were eyes and ears of the society,” he observed.

The CJP recalled how several judges were ousted from the office and suffered house arrest and, while comparing with his counterparts from 1980 to 1990, and observed that he found himself undeserving to be in this office.

Political battle

Naming Justice Qazi Faez Isa, the CJP regretted that “we suffered when the full court sat to try a colleague. We were punished and the judge was punished — an incident which left scars. No one bothers about this institution to realise how much we suffered”.

“Now again a political battle is going on and other colleagues are being disputed on the basis of hearsay when we should bridge the gap and in many respect we all judges are united and will remain united. There are audio-video leaks and we are again being asked to butcher another brother. We have picked finest judges who were giving excellent judgements, but our wives and children who cannot respond are being dragged into.

“We are trying to do our job honestly and fairly in the fear of Allah Almighty as we have unhappy task to write judgements,” CJP observed and, while referring to former judge Iqbal Hameedur Rehman, who had to resign because he could not face his father, regretted that the judge was still heartbroken.

When the AGP referred to an earlier order in which a nine-member bench was reduced to a five-judge bench, the CJP asked who told him that the judges have recused themselves, adding that when “you start crossing our wall, you are engaging in our privacy. It is the choice of the CJP to reconstitute the bench and it is none of anyone’s business how many judges recused, etc.”

Earlier, Chairman of Executive Committee of the Pakistan Bar Council Hassan Raza Pasha requested the court to hold a full court meeting of the Supreme Court to resolve all internal issues, while the AGP requested the bench to consider constituting a full court and informed it that the country was facing a deficit of Rs1.4 trillion by the end of current fiscal year.

Turning down the request for a full court, the CJP explained that while constituting benches, “we have to ensure that ordinary litigants must not suffer and their cases should continue to be heard, besides sometimes the judges were not available. And when AGP repeats his request for full court, he in fact is making insinuation”.

Later, Irfan Qadir, representing the Election Commission of Pakistan, said if the bench gets emotional then the other side would also get emotional. He said freedom of expression should not be discouraged, wondering why the apex court had not stopped Hameedur Rehman from resigning.

Judge’s note

Justice Mandokhel explained in his note that the order of constituting a three-judge bench after the recusal of Justice Amin-ud-Din Khan was not dictated in the open court, rather in his absence and without contacting him for participation in the deliberations.

“I felt that the three members of the bench, for reasons best known to them, opted not to involve me in the consultation,” he said, adding that the present petition was the outcome of the previous proceedings which were dismissed by two members of the bench (Justice Yahya Afridi and Justice Athar Minallah) through their respective short orders, followed by him and Justice Syed Mansoor Ali Shah.

Right from the first date of hearing of the present matter, Justice Mandokhel said, he wanted this bench to resolve the controversy of the March 1 order regarding elections in Punjab and Khyber Pakhtunkhwa and its ‘order of the court’, which has still not been issued till date, as it is of great significance to the present matter.

No heed was paid to this issue, despite raising it repeatedly, he said, adding that the AGP, members of the legal fraternity and counsel for the political parties also requested for resolution of this issue, but received no response from the other members of the bench.

“Under such circumstances, I do not want my presence on the bench to make my brothers uneasy, as such, I do not wish to remain on the bench,” Justice Mandokhel observed.

Published in Dawn, April 1st, 2023