Supreme Court bench hearing delay in Punjab assembly elections dissolves after Justice Aminuddin Khan recuses himself

ISLAMABAD, Mar 30 (SABAH): The Supreme Court of Pakistan bench hearing the Pakistan Tehreek-e-Insaf’s petition against the Election Commission of Pakistan’s decision to postpone polls to the Punjab Assembly till October 8 dissolved on Thursday after Justice Aminuddin Khan recused himself from hearing the matter. The court has adjourned further hearing of the case till 11:30 AM tomorrow (Friday). The new bench excluding Justice Aminuddin Khan will conduct hearing of the case.

“After yesterday’s judgment, I recuse myself from hearing the case,” Justice Khan said.

He referred to a judgment, authored by himself and Justice Qazi Faez Isa, issued a day earlier which 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 — under Article 184(3) — should be postponed until they are legislated upon.

Justice Aminuddin Khan’s recusal came as an unexpected development before the court proceedings began on Thursday.

The original bench — which had conducted three hearings on the PTI petition — was constituted by Chief Justice of Pakistan Justice Umar Ata Bandial. It was headed by the CJP himself and included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Aminuddin Khan.

At the outset of Thursday’s hearing, when the five-member bench came to the courtroom, Chief Justice of Pakistan (CJP) Umar Ata Bandial said Justice Aminuddin Khan wanted to say something.

“I recuse myself from the instant case in light of SC order issued by Justice Qazi Faez Isa,” the judge stated.

The judgment to which Justice Khan referred for his recusal was issued in a suo motu case related to the award of an additional 20 marks to candidates for memorising the Holy Quran by heart to get an MBBS or BDS degree.

A three-member special bench, formed by the CJP, heard the case. It was headed by Justice Isa and comprised Justice Khan and Justice Shahid Waheed. Wednesday’s verdict was issued by Justice Khan and Justice Isa, while Justice Waheed disagreed with the judgment and will write a separate dissenting note.

The judgment stated that the Constitution did not grant unilateral and arbitrary power to the country’s top judge to list cases for hearing, form special benches and select judges.

It proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the chief justice of Pakistan’s (CJP) discretionary powers to form benches.

“With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in the verdict. “Collective determination by the Chief Justice and judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice.”

The judgment explained that there were three categories of cases. First, when a formal application seeking enforcement of the fundamental rights was filed; second, when suo motu notice was taken by the Supreme Court or its judges; and third, when there are cases of immense constitutional importance and significance, which may also be those in the first and second categories.

Order 25 of the Supreme Court Rules 1980 only attended to the first category of cases and there was no procedure prescribed for cases in the second and third categories, it observed, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3).

The order noted that neither the Constitution nor the rules grant the chief justice or the registrar the power to make special benches, select judges who will be on these benches and decide the cases that they will hear.

“We must remind ourselves of the oath that we take, which is to (a) act in accordance with the Constitution and the law, (b) abide by the code of conduct, (c) not let personal interest influence decisions, (d) do right by all people and (e) to preserve, protect and defend the Constitution,” it added.

Meanwhile PTI’s petition, moved by party’s 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 ECP’s 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 ECP’s 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 ECP’s authority to “amend the Constitution” 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 Court’s 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 — financial constraints, security situation and non-availability of security personnel — would improve by Oct 8.

The “so-called excuse” 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 can’t be used as excuses to “subvert” the Constitution and deny people their right to elect representatives.

“Not 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,” the petition explained.