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Express Tribune
3 days ago
- Politics
- Express Tribune
Slim chances of CB upholding July 12 ruling
Listen to article Contrary to the majority opinion of a full bench of the Supreme Court, which on July 12, 2024 ordered allocation of reserved seats to the PTI, a constitutional bench (CB) reviewing the order states that the PTI is itself to blame for not getting reserved seats after the Feb 2024 general elections. While hearing review petitions in the reserved seats case, the judges are wondering as to why the PTI did not challenge the Election Commission of Pakistan (ECP) orders to declare its candidates independent despite the fact that eminent lawyers were contesting elections on the PTI ticket. The judges are also consistently defending the January 13, 2024 order of the Supreme Court to declare PTI's intra party election illegal. The order had resulted in stripping the party of its election symbol Even the judge, who himself raised serious questions on the conduct of the ECP in his minority view, is criticizing the PTIs' "poor legal strategy" to get reserved seats and the decision of the PTI backed candidates to join the Sunni Ittehad Council (SIC), which had not contested in the general elections. A three-member bench led by former chief justice of Pakistan Qazi Faez Isa announced the verdict in the PTI intra-party election case on the night of January 13, 2024the last date for submission of party symbols in the general elections. Since May 9, 2023, PTI leadership has been accusing the government of using coercive tactics to pressure its leaders into leaving the party. Even during the elections, PTI backed candidates were not allowed to run any campaign. Even nomination papers of some candidates were snatched before their submission. The bench led by Justice Qazi Faez Isa had compelled the ECP to announce the date for the general elections in consultation with the president. However, there was a serious clash between the former CJP and the PTI as the latter had filed a presidential reference for his removal during its rule. After January 13, 2024 order, the PTI had lost hope that it could get any relief from the Supreme Court led by CJP Isa and after the intra-party election case order, PTI counsel Latif Khosa had withdrawn the contempt petition filed against the ECP for not complying with the SC decision to provide level playing field to the PTI to contest the elections. Some lawyers ask as to why CJP Isa did not list the review petition against his order for hearing to clear up the ambiguity, if the ECP was misinterpreting the order by declaring PTI candidates independent. They note that if the SC could issue two clarifications in the Mubarak Sani case then why it could not take notice of the misinterpretation of its important ruling by the ECP, which is a constitutional body. Constitutional benches (CBs) have also been created in the Supreme Court and high courts in view of the 26th Constitutional Amendment, which, according to the PTI, was passed using coercive tactics. The CB hearing review petitions against the SC's July 12, 2024 order in the seats case also comprises judges who are selected by the executive members in the Judicial Commission of Pakistan (JCP) after passage of the 26th amendment. No explanation is given as to why the CB committee did not give a recommendation to the JCP for the inclusion of the six judges who were part of the original bench that heard the reserved seats case. Currently, no one on the bench is backing the majority decision in the reserved seats case. Even two signatories of the majority judgement are not passing any remark in favour of the July 12 verdict. Justice Ali Baqar Najfi has given a surprise by using the term "biased" for the majority decision. Only Justice Salahuddin Panwar is showing interest in reading the majority judgement. Justice Muhammad Hashim Khan Kakar said they, being junior judges, should defend the judgement under review. He, however, urged the SIC counsel Faisal Siddiqi to highlight important points for the determination at this stage. Justice Aminuddin Khan, who is leading the bench, is consistent in his approach. He has been consistently raising questions about the relief given to the PTI by the majority judges on July 12, 2024. Justice Mussarat Hilali, who was a member of the bench which had given January 13, 2024 order in the intra-party election case, is expressing concern that the majority judgement discussed the PTI intra-party election case judgement, which was not challenged before them. Faisal Siddiqi said the majority judges criticized the ECP's conduct but they did not question the January 13 order. Siddiqi is trying to read the important portions of the July 12 judgement before the bench. There are very slim chances that majority judgment will be upheld by this bench. There is a criticism that the majority judges had done judicial overreach in this case. On the other hand, PTI lawyers are saying that majority judges had tried to restore democracy which is the salient feature of the Constitution. The hearing of the case is adjourned until June 16. If the PTI could not get reserved seats, then the situation may not change but if the ruling parties get reserved seats then they will be easily in a position to get two-thirds majority in parliament, enabling them to amend the Constitution. PPP through Farooq H Naek and Asad Abbasi have filed written replies in the reserved seats case. The PPP said the order under review contravenes established principles of constitutional interpretation. By devising a procedure not contemplated under the Constitution, the order ventures into legislative territory, contrary to this honorable court's consistent jurisprudence that "the function of the court is interpretation, not legislation." The reply states that it is a settled principle of this court that when the law prescribes a specific manner and procedure for doing something, it must be followed strictly without deviation. This principle alone warrants the recall of the order under review, it added.
Express Tribune
02-03-2025
- Politics
- Express Tribune
LHC moved for details on SC's rights monument
A lawyer has approached the Lahore High Court (LHC), seeking directions for the Supreme Court's registrar to provide details regarding the recently established and inaugurated 'fundamental rights monument' within the apex court premises. The project was initiated during the tenure of former chief justice of Pakistan Qazi Faez Isa. Petitioner Abuzar Salman Khan Niazi filed the writ petition in the LHC, naming the SC registrar as the respondent. A single-member bench, led by Justice Shams Mehmood Mirza, is set to hear the petition on Monday (today). According to the petition, the petitioner had twice approached the SC registrar to obtain the relevant information but received no response. He had sought answers to six questions from the registrar regarding the project. The first question pertained to the process adopted for sanctioning the project. The second inquired about the authority responsible for granting approval. The third sought clarification on the law, rule, or regulation under which the project was sanctioned. The fourth question concerned the firm or company engaged in design and architectural services, while the fifth focused on the procedure followed for procuring such services. Meanwhile, the sixth question inquired about the firm or company hired for construction and development, along with the project's total cost. The petition argues that Article 3 of the Constitution imposes a duty on the state and public functionaries to eliminate all forms of exploitation. The refusal to provide the requested information constitutes a violation of this constitutional obligation. The petition states that Article 3 of the Constitution imposes a positive duty upon the state by extension public functionaries to ensure the elimination of all forms of exploitation as opposed to a discretion to act or not to act. "Thus, the respondent's refusal to provide the requested information constitutes a blatant violation of Article 3 of the Constitution of the Islamic Republic of Pakistan." It contends that the superior courts, in the catena of judicial pronouncements, have emphasised that making access to information is a justiciable right of the people and further stressed that all information which can be of any public importance must be made available to the general public. The petition states that it is a matter of public importance which aids the process of fairness, accountability and transparency; therefore, the people of Pakistan have the right to know about the entire record of the 'fundamental rights monument' recently set up and inaugurated in the SC. However, the respondent has unjustifiably failed to provide the requisite information, the petition argued. "That right to information and access to information in all matters of public importance is indisputably a fundamental right guaranteed under Articles 19 and 19-A of the Constitution of Islamic Republic of Pakistan, 1973." It contends that this right emanated from the fundamental democratic principle that members of a representative society must be adequately informed to enable them to make well-reasoned and intelligent decisions regarding matters that affect their rights and interests. "Therefore, the people of Pakistan have a right to know every public act, everything that is done in a public way, by their public functionaries and chosen representatives."
Express Tribune
27-01-2025
- Politics
- Express Tribune
Acrimony at its peak
ISLAMABAD: A clash has intensified between the judges of the Supreme Court's regular benches and those appointed to its constitutional benches (CB), formed in accordance with the 26th Constitutional Amendment, 2024. Now judges from both sides have started passing judicial orders and remarks against each othersomething which was unprecedented in recent judicial history. This trend of questioning each other's conduct publicly will give more confidence to the executive to further weaken the judiciary as an institution. The superior judiciary started weakening, when chief justices began to form benches comprising "likeminded" judges to get favorable judicial orders in high profile cases with potential to shape national politics. Since the era of former chief justice Mian Saqib Nisar, SC judges have been divided into two camps. Divide among judges increased, when the PTI led government filed a presidential reference seeking removal of Justice Qazi Faez Isa. One section of judges was also interested in ousting him. However, they could not succeed in the end. Judicial politics intensified when Qazi Faez Isa took oath as the top judge. Two SC judgesIjaz ul Ahsan and Sayyad Mazahar Ali Akbar Naqvi, who were originally not in Isa's rival camp, were forced to resign last year. Even a larger bench led by Aminuddin Khan held that the Supreme Judicial Council (SJC) could proceed against retired judges under Article 209 of the Constitution. There is perception that the purpose of ruling was to oust Mazahar Ali Akbar Naqvi on account of misconduct after his resignation. After the SC ruling, the SJC declared Naqvi guilty on several charges. After the SC's reserved seats verdict of July 2024, clashes among SC judges further intensified. One section of judges in their minority view had held that the institutions are not bound to implement "unconstitutional judicial orders". The same section of judges led by Justice Isa facilitated the passage of the 26th Constitutional Amendment. However, the executive did not agree to extend the tenure of Isa due to several reasons. After the 26th Constitutional Amendment, like-minded judges of former CJ Isa were selected for the constitutional bench by the Judicial Commission of Pakistan (JCP). Justice Aminuddin Khan was selected as head of the constitutional bench by non-judicial members of the JCP. Now the beneficiaries of 26th Constitutional Amendment are on one side and those aggrieved by the amendment are on the other side. The constitutional bench has delayed the adjudication of the 26th Constitutional Amendment case. Now the government is likely to be successful in appointing eight more like-minded judges to the apex court through the JCP. It has already succeeded to appoint judges of its choice in the Islamabad High Court and the Sindh High Court. Lahore High Court former judge Shahid Jamil Khan said proceedings in three cases at the Supreme Court have aggravated the judicial chaos. "The bench led by Justice Syed Mansoor Ali Shah has discharged the additional registrar from contempt proceedings, but has referred the matter for constitution of Full Court, to the Chief Justice of Pakistan, observing that a judicial order has been ignored by the members of two SC committees. "In my opinion, the question regarding jurisdiction of the regular and constitutional bench should have been referred to the full court rather than the contempt case." He said two members of the appellate bench, constituted against the show cause notice issued to the additional registrar have already reacted to the division bench's order. "The case has been disposed of through a split decision. Two judges of the bench have allowed the application for withdrawal of appeal whereas four judges have disposed of the contempt petition with some observations to be recorded later." The former LHC judge stated that the observations shall surely escalate the controversy and further polarize an already divided Supreme Court. "In addition, the cases in which the question of jurisdiction was raised before a regular bench have been listed before the constitutional bench, in presence of the judicial order by the regular bench and particularly in presence of the direction in the judgment delivered today that case be fixed before the same bench in February. "The constitutional bench shall hear the case tomorrow and observations or any order in the proceedings is expected to broaden the controversy. "The only solution consistently being suggested by the lawyers appearing before all benches is that a full court be constituted for an authoritative institutional view by the Supreme Court. "But to the utter surprise of everyone, the JCP is convened to appoint eight more judges in the Supreme Court. "This will be taken as an attempt to outnumber judges who might opine in extension of jurisdiction to Regular Benches matters involving constitutional interpretation." He said the constitutional bench hearing petitions against 26th Constitutional Amendment was skeptical in recording the grounds challenging their jurisdiction being creation of the impugned amendments in the Constitution. Khan said it appeared that bothhaves and have notare fighting for judicial review powers against the legislative action, ignoring that they all are judges collectively forming the Supreme Court along with chief justice under Article 176. He said the members belonging to the executive side and dominating the JCP would be replaced with a change of regime. Khan said the divide sowed by the 26th Constitutional Amendment through Article 191A, shall continue, demolishing the separation of power and independence of judiciary as fundamental salient features of the Constitution. Abdul Moiz Jaferii Advocate said a notice of contempt was appealed against before a supposedly constitutional bench. Right at the start, the appellant's lawyer said he was no longer aggrieved as the contempt charge had been dropped against the appellant by the bench which started it. "What followed cannot be considered judicial proceedings because there was nothing left to adjudicate. It would have been better termed a press conference if it had been live-streamed". Jaferii said all the pretense has been dispensed with. "But the show must go on, with the lead actors once again pretending that there is nothing to see here." Rida Hosain Advocate said in October last year, Justices Syed Mansoor Ali Shah and Munib Akhtar directed that the 26th amendment challenges be listed for hearing before a full court. "This order of the committee was defied. Now, when a regular bench led by Justice Shah was examining the ouster of jurisdiction under the 26th amendment, the case was unlawfully unwithdrawn from him. "First an administrative order of the committee was defied, and now a judicial order has been violated. "The 26th amendment is a clear assault on judicial independence, and it is regrettable that the judiciary has not been able to unite. "The failure of the judges to unite has allowed the executive to encroach on their domain, and has eroded the credibility of the institution. "Ultimately, the 26th Constitutional Amendment has achieved what it was designed to do. Constitutional cases of public importance are heard by a government-approved constitutional bench. Meanwhile, judges on the regular bench struggle to preserve their jurisdiction," she added.
