SC top judges question procedure of fixing cases for hearing,

ISLAMABAD– The Supreme Court of Pakistan on Tuesday reserved verdict in the suo motu case taken up to determine who has the authority to announce a date for the elections.

A five-member bench headed by Chief Justice Umar Ata Bandial and comprising Justice Munib Akhtar, Justice Muhammad Ali Mazhar, Justice Shah and Justice Mandokhail will pronounce the verdict on Wednesday at 11am.

Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial thanked all the lawyers for assisting the apex court throughout the hearing.

“I cannot say when will we be back [to announce the verdict],” the CJP added.

Earlier today, the court directed the political parties – both in power and opposition – to sit together to work out the date for the Punjab and Khyber Pakhtunkhwa elections.

The apex court directed PTI leaders Shireen Mazari and Fawad Chaudhry to hold consultation with party chairman, Imran Khan, and legal team of the ruling coalition to consult with their leaders on the election date.

The latest directive was issued after the three ruling parties – PML-N, PPP and JUI-F – withdrew the plea seeking formation of the full bench to hear the suo motu case following the recusal of four judges from the bench. While withdrawing the petition, Farooq H Naek said the ruling partners did not want to pursue the plea.

Justice Mansoor remarked the political parties should think about the country instead of indulging in the legal battle.

Previously, the case was being heard by the nine-member bench but it split on Monday into a five-judge bench after four judges – Justice Ijazul Ahsan, Justice Syed Mazahar Ali Akbar Naqvi, Justice Syed Mansoor Ali Shah and Justice Athar Minallah – recused themselves from hearing the case.

Tuesday’s Hearing 

At the outset of the hearing, Attorney General for Pakistan (AGP) Barrister Shehzad Ata Elahi raised objection about Islamabad Bar Council lawyer Abid Zuberi, saying his name was removed from the previous order of the top court. CJP Bandial remarked that an order became a decree when it was signed by the judges. He then allowed Mr Zuberi to submit his arguments.

At one point during the hearing, Justice Mandokhail asked if the governors and president were bound to take advice from the cabinet in the matter. “Can they announce the date for polls on their own?” he questioned.

The chief justice observed there was no need to take an advice when a person had a discretionary authority.

Every action of president bound to be on govt’s recommendation under Article 48

The CJP then inquired, “Who can issue the notification of dissolving the assemblies?” Mr Zuberi said the law secretary had issued the notification to dissolve the assembly. He said the apex court had declared in the past that elections were to be held within 90 days.

Meanwhile, Justice Mandokhail commented on the authority of the president to issue the date for elections, remarking that the Article 48 of the Constitution explained that every action of the president should be based on the recommendation of the government. At this, the CJP remarked: “This means that the announcement of the date for polls will be on advice of the government”.

However, Mr Zuberi argued that the governor had the authority to dissolve the assemblies. When the CJP asked, “Who will then issue the notification of the dissolution of assemblies?”

The lawyer said the governor had to issue a notification of dissolution of the assembly on the advice of the chief minister. He said the assemblies automatically stood dissolved within 48 hours of sending the advice whether the summary was signed by the governor or not. In this case, the notification of the dissolution was issued by the law secretary and not the governor, he said.

Justice Mandokhail observed that the government could still ask the governor for giving a date for elections today as per the Constitution. Justice Shah asked whether the president could refuse to approve an advice of the governments.

Earlier,

Supreme Court judges Justice Qazi Faez Isa and Justice Yahya Afridi on Tuesday took notice of the procedure of the hearing and fixing of cases.

The court summoned the apex court registrar with complete details over the matter.

Justice Isa said he was the judge of Supreme Court besides remaining the Balochistan High Court chief justice and he wanted to improve transparency in the cases. He questioned the authority of the registrar to shift cases from one bench to another while saying transparency would remain affected due to this approach of the registrar.

Justice Isa added it seemed the registrar was even more powerful than the apex court judges because he could not hear the case of 2010 because the registrar did not put the cases on the hearing list. He also questioned the registrar regarding the procedure to fix the cases for hearing. The registrar replied that the cases were fixed on the list with the approval of the chief justice.

Justice Yahya Afridi also criticised the registrar’s action and said there was Justice Hassan Rizvi on the bench and why it was changed.

Justice Faez Isa said why his and Justice Yahya Afridi’s names were removed from the bench as it made people suspicious. The registrar responded by saying the staff officer of the chief justice made a proposal regarding the changes in the bench under the chief justice’s directions.

Justice Faez mentioned Article-10A regarding the due process and added there should be legal reasons for the changes in the bench as otherwise, the people would say the court had favoured specific party by formulating a like-minded bench. He added that today the cases of 2021 and 2022 were fixed for hearing and needlessly the cases were shifted from the bench of Justice Hassan Rizvi and given to the bench of Justice Mazahar Ali Naqvi and highlighted the roster had been made regarding his name in the tomorrow’s bench.

Justice Afridi raised a pertinent question regarding the formulation of the roster of sittings. He asked whether the roster was made by the chief justice or registrar. To which, the registrar answered that the preliminary roster was sent to the chief justice.

Justice Isa castigated the registrar and said he should speak in a judicious manner and if he did not fix the case of a person on merit, it would severely affect the judicial system.

The registrar responded that the chief justice approved the roster and then the changes in the bench were made. Then Justice Isa asked the registrar to show the file on which the note of changes in bench was written. No file was presented in court.

Justice Isa asked another question and said was it the complete prerogative of the chief justice to formulate a bench and fix cases for hearing? He also stopped the registrar from using the word “we” as he was not the king in court.