Senior Judges Must ‘Ideally’ Be Included In Larger Bench: Former Judge

Senior Judges Must ‘Ideally’ Be Included In Larger Bench: Former Judge
LAHORE: The talk of the town is not the chief justice of Pakistan’s suo motu notice on the supposed delay in elections, but in fact the formation of a larger bench of the apex court that does not include two senior judges. 

Legal and constitutional experts say that the formation of larger benches, and selection of judges therein, are at the "sole discretion" of Chief Justice of Pakistan (CJP) Umar Ata Bandial; whether their establishment or constitution is right or wrong, that is a different question altogether. 

In a breakthrough development on Wednesday night, the Chief Justice of Pakistan (CJP) Umar Ata Bandial took suo motu notice of apparent delays in the elections of Punjab and Khyber Pakhtunkhwa (KP) assemblies, and formed a larger bench of the Supreme Court of Pakistan (SC) to hear the case.

The bench comprises the CJP himself, Justice Ijaz Ul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah. 

Interestingly, two senior judges — Justice Qazi Faez Isa and Justice Sardar Tariq Masood — were conspicuously missing from the list: they are second and third in terms of seniority after the CJP, and their preclusion from the larger bench has raised many eyebrows. 

It is pertinent to mention that this development came two days after President Dr. Arif Alvi unilaterally announced that elections of KP and Punjab assemblies will be held on April 9. The President's move was condemned by the government, and some constitutional experts even termed it as "unconstitutional". 

‘CJP prerogative to form larger benches’

Speaking to The Friday Times (TFT), Justice (retd) Shaiq Usmani said that it is solely the discretion of CJP to form larger benches, and it is written in the rules governing the Supreme Court of Pakistan that the CJP could include whichever judge he wanted. “Whether this practice of missing some of the senior judges is right or wrong is a separate question,” Justice (retd) Usmani said. 

‘Senior judges must be part of larger benches’

The constitutional expert recalled that there was huge protest regarding this in India, and likewise a committee was also formed in Pakistan. Justice Qazi Faez Isa had also recorded his protest in the past when his name was skipped from one of the larger benches. “Ideally, senior judges must be part of such benches,” Justice (retd) Usmani added. 

Agreeing with him, Barrister Haris Azmat told TFT that it is the prerogative of CJP Bandial to include whichever judge he deemed fit for the formation of a larger bench, as per the rules. 

Barrister Azmat said that in the absence of criteria for formation of larger benches, nobody could stop CJP from forming a bench of his own choice.  

“But bars have been arguing about these powers in the past as well and they have been recommending certain criterias for that which also includes that senior judges must be part of larger benches on the basis of seniority list,” Barrister Azmat concluded. 

Some judges have 'ganged up' for PTI's support

One leading jurist — a lawyer and constitutional expert of the country who had also served as Attorney General of Pakistan (AGP), Additional Advocate General of Punjab, and also as a Lahore High Court judge — spoke exclusively to TFT and alleged that some of the judges have "ganged up" for Political engineering in favour of Pakistan Tehreek-e-Insaf (PTI). 

“It seems that they have decided to arrange elections in Punjab and KP before the elections of National Assembly, and they have formed the bench keeping that in mind by skipping the names of Justice Isa and Justice Masood,” he further said. 

He claimed that CJP Bandial, Justice Ijazul Ahsan and some others could have teamed up firstly to "save their skins" as they are the ones who had benefited from the hybrid regime. Secondly, in case Imran Khan and PTI don't come to power again, their cases and files might open up and they are "scared of that outcome". 

Justice Isa’s name ‘deliberately skipped from the bench’

“It seems that they deliberately skipped the names of two senior judges who are on second and third spot in terms of seniority, as they wanted to give a decision of their own choice and silence those voices which are known for standing for the rule of law, such as Justice Isa,” he said.

He also purported that 'they' were actually planning to sabotage the powers of Election Commission of Pakistan (ECP), which is the ultimate constitutional authority when it comes to conducting elections. 

‘CJP formed the bench as per the rules’

While rejecting these allegations, Barrister Muhammad Ahmad Pansota ask why would CJP Bandial 'gang up' with anyone. “They accepted his decision against the speaker's ruling when it was in their favour. At that time had he ganged up with them,” Barrister Pansota asked while terming the allegations "useless". 

Barrister Pansota believes that CJP Bandial has exercised his powers in accordance with the Supreme Court rules, which allow him to form a bench of his own choice.

 “As far as the matter of skipping two judges is concerned, the other judges who are not part of the bench - other than Justice Isa and Justice Masood - could also raise such questions as to why their names are also skipped,” Pansota added. He concluded by saying that in his legal opinion, the allegations against the CJP were "not justified". 

The writer is a senior correspondent at The Friday Times with a focus on politics, economy and militancy. He also hosts the Hassan Naqvi Show on Naya Daur.