Just moments after a four-member Supreme Court (SC) bench resumed hearing PTI’s petition against the Election Commission of Pakistan’s decision to delay polls in the Punjab Assembly, Justice Jamal Khan Mandokhail on Friday distanced himself from the bench.
The apex court bench considering the case, which had already been disbanded a day earlier, has changed as a result of the surprising move.
The original bench included:
- Chief Justice of Pakistan (CJP) Umar Ata Bandial
- Justice Ijazul Ahsan
- Justice Munib Akhtar
- Justice Jamal Khan Mandokhail
- Justice Aminuddin Khan
Justice Aminuddin Khan resigned from his position on the bench yesterday, mentioning his signature on an order from another court that proposed the postponement of all cases filed under Article 184(3) of the Constitution.
On Friday morning, a new bench was established but kept the four justices, except Justice Khan.
However, Justice Mandokhail announced his resignation from the court as soon as the proceedings got underway.
“Justice Aminuddin Khan recused himself from the bench after which we were waiting for the court order,” he said. “I received the order at home yesterday.”
J.ustice Mandokhail then requested that the law general read loudly the court ruling that was implemented.
A copy of the order, which stated that Justice Khan had resigned from the bench, but the Chief Justice of Pakistan, Justice Akhtar, and Justice Ahsan “respectfully disagree” and think that the case’s hearing will continue “unaffected.”
Justice Mandokhail’s dissenting statement was also included in the court order, which read: “The decision was not dictated nor was I consulted by the HCJ [chief justice]. However, the court must take the judgment’s effects into account.
Justice Mandokhail made reference to his dissent note in the Supreme Court today when he claimed that despite being a member of the bench, he wasn’t informed about the creation of the new bench.
Given that “all the judges are bound by the Constitution,” the judge observed that he was considered like a “misfit” on the new bench.
According to CJP Bandial, A decision regarding the new bench will soon be made public in the court.
Later, the court staff announced that the hearing will commence at 2 pm after Friday prayers.
Justice Aminuddin Khan’s recusal
On Thursday, Justice Khan withdrew from the five-judge Supreme Court panel that was deliberating a PTI petition.
“I recuse myself from the case,” he said, “in view of case No. 4 of 2022 (awarding of 20 additional marks in MBBS or BDS degrees to candidates for memorization of the Holy Quran), which is still pending but the current bench is moving forward with the case (postponement of Punjab elections).
The decision Justice Khan was referring to, which was co-authored by Justice Qazi Faez Isa in support of his recusal, was made in a suo motu case concerning the awarding of an additional 20 marks to applicants for an MBBS or BDS degree who memorized the Holy Quran by memory.
The Constitution does not give the Chief Justice of Pakistan the unilateral and arbitrary power to determine how cases under Article 184(3) be listed for hearing, how benches to hear such cases are formed, and how judges hearing such cases are chosen, according to Justice Isa and Justice Amin’s decision.
The judgment had also called for postponing all other cases under Article 184(3).
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 violated the Constitution and tantamount to amending and subverting it.
PTI asked for orders from the central government in the petition to guarantee law and order, the provision of resources and security personnel as required by the ECP to conduct the elections.
Additionally, it asked the court to order the governor of Khyber Pakhtunkhwa to declare the date of the provincial assembly elections. Last week, KP Governor Ghulam Ali also suggested that the province’s polls take place on October 8. He had earlier declared May 28 as the election day.
The PTI questioned the ECP’s power to “amend the Constitution” and questioned how it could decide to postpone elections for any assembly for longer than the 90-day window allowed by the Constitution following the date the relevant assembly was dissolved.
According to the appeal, the Supreme Court’s rulings must be obeyed and implemented by the ECP, which is devoid of all authority to do so.
The Supreme Court mandated in its ruling on March 1 that the Punjab Assembly election take place within 90 days and that the president declare the date. The petition remembered that it also instructed the authorities to give ECP money and security personnel for the elections.
The appeal argued that the ECP cannot disregard the Supreme Court’s instructions as it did in this case, which was unlawful and subject to being overturned. By declaring October 8 as the date, the ECP extended the constitutionally-mandated 90-day delay for the elections by more than 183 days.
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 despite them.
These situations cannot be used as justifications for “subverting” the Constitution and denying citizens the ability to choose their officials.
The petition stated that postponing elections in the face of terrorist threats would be tantamount to caving into the threats, which is the true goal of all terrorist actions.