ISLAMABAD: A bench of the Supreme Court sans Justice Aminuddin will hear the petitions against the Election Commission of Pakistan (ECP) for the delay of elections in the Punjab and Khyber-Pakhtunkhwa Friday (Mar 31).
A five-judge SC bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin Khan, and Justice Jamal Khan Mandokhel, on Thursday, assembled in Courtroom No1 for the hearing of speakers Punjab and KP and the Pakistan Tehreek-e-Insaf (PTI)’s petitions.
The chief justice at the outset said Justice Amin wanted to say something. Subsequently, Justice Amin said, in view of a judgment on suo motu power of the chief justice of Pakistan, released a day ago (March 29) by a three-judge bench, of that I was a member, I want to recuse from the bench. Justice Amin had supported the judgment, authored by Justice Qazi Faez Isa, while Justice Shahid dissented.
Punjab, KP polls in 90 days: SC asks ECP to comply with constitutional command
After the recusal of Justice Amin, the five-judge bench dissolved and the judges retired to their chambers. At around 4:30 pm a court assistant announced in the courtroom that “a bench without Justice Aminuddin will hear the petitions tomorrow (Friday).”
A three-judge bench, headed by Justice Qazi Faez Isa, and comprising Justice Aminuddin Khan and Justice Shahid Waheed with a majority of 2 to 1 released the judgment on Wednesday (March 29), which said: “Hearing of all the cases under Article 184(3) of the Constitution be deferred until the changes are made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.” Justice Amin endorsed Justice Qazi’s views, while Justice Shahid dissented.
With regard to Article 184(3) of the Constitution, the order said that there are three categories of cases. “Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category).
Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases. It said that the situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution.
“The Rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how judges hearing them are selected.” Meanwhile, Justice Shahid Waheed, in his separate, released on Thursday, held that any member of the bench, after having accepted the administrative order of the chief justice of Pakistan (CJP), is estopped to question the constitution of the bench on the well-known “doctrine of estoppel”.
“None of the judges of this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon,” stated Justice Waheed.
He further said: “This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.” He noted that the bench in the suo motu case “has been lawfully constituted to hear this case.”
Copyright Business Recorder, 2023