'Bench Fixing': Controversial Actions Not Doing Judiciary Any Favours

'Bench Fixing': Controversial Actions Not Doing Judiciary Any Favours
From the Supreme Court's (SC) suo motu notice to the formation of the bench hearing it, the decision to take this issue under judicial scrutiny was controversial from the day one. Those who initiated this suo motu notice — justices Ejazul Ahsan, Mazahar Akbar Naqvi, and the chief justice (CJ) who agreed with them — should have been kept off the bench from the outset to ensure a fair trial under Article 10-A of the Constitution. Instead, not only were they made part of the bench, but the CJ decided on his own to head the bench, instead of letting a senior judge like justice Qazi Faez Isa head it.

"Bench fixing" on the part of the venerable apex court has been alleged time and again. Justices Qazi Faez Isa and Yahya Afridi’s benches were changed overnight, and yet again, the SC's senior puisne judge and future CJ, justice Qazi Faez Isa was removed from all benches. It is becoming more and more clear that CJ Bandial has failed to provide unified and cohesive leadership at the helm of the apex court.

Justices Minallah and Afridi, who rejected the current suo motu notice, did not recuse themselves from the proceedings and gave their clear verdict against the court's decision to take suo motu notice. The CJ should have included them in the bench after the recusal of justices Mazahar Akbar Naqvi and Ejazul Ahsan. Moreover, the judgment rendered by justices Minallah and Afridi on the suo motu should have been included in the final order, just like original Panama bench, and they should have been asked to sign today’s judgement as well; but this was not done and the 'tradition' was violated.

The SC didn’t award any 'punishment' to president Alvi after his clear admission of guilt; that could not constitutionally invoke Article 105(3) and usurping the powers of KP Governor. The SC also didn’t 'punish' him earlier when he unconstitutionally dissolved the National Assembly in April 2022, on the advice of then-prime minister Imran Khan who was facing a no confidence motion under Article 95 of the constitution.

Instead of punishing or reprimanding the president to stay within his constitutional ambit, the SC has awarded the guilty head of state by mandating the Election Commission of Pakistan (ECP) to consult him on deciding the date of provincial assembly elections in Punjab.

Today's SC verdict orders the announcement of an election date for both KP and Punjab "as close as possible" to the 90-days requirement stipulated in the Constitution; this, in a way, is the apex court admitting that the requirement to hold elections within 90 days schedule might not be feasible in the current circumstances. Once the 90-day limitation imposed by the Constitution is broken, it falls within the domain of the ECP to hold elections under Article 218(3), after invoking Article 254 justifying the delay beyond 90 days.

Holding elections to the national and provincial assembly on the same day, as envisaged by the Constitution, in October is more practicable due to a number of reasons. The very fact that the ongoing digital census will complete on April 30, and the new delimitation is due to complete in September, raises questions on the citizen's right to representation, without which democracy is neither complete nor legitimate. The harsh conditionalities of the ongoing IMF program, and deteriorating security situation in KP and Balochistan, make elections before October this year very impractical.

Holding elections before October 2023, at the whims of one political party and at the expense of other political players, will also not bode well for a 'level playing field' or for the legitimacy of election results. Whoever believes elections alone are the solution to Pakistan's problems must not forget the aftermath of the 2018 general elections.

The writer is a journalist based in Islamabad