New SC Bench to hear Polls delay case today as one Judge recuses

-Justice Aminuddin Khan recused himself from SC Bench on ECP polls
-Judges cannot raise objections regarding constitution of benches: Justice Shahid Waheed 
-90-day constitutional provision on holding elections inviolable: Imran
-SC must internally address the issue, says Barrister Ali Zafar

Staff Report

ISLAMABAD: Hours after Justice Aminuddin Khan recused himself from a Supreme Court bench hearing the PTI’s petition against the Election Commission of Pakistan’s decision to delay polls in Punjab, the SC said that a new bench will take up the case at 11:30am today (Friday).
The SC order, read out by the court staff, stated that the decision regarding the members of the bench will be taken on Friday and the case will be decided before a bench that does not include Justice Khan.
In an unexpected development earlier in the day, the five-member apex court bench hearing the case was dissolved after Justice Khan distanced himself from it. “After yesterday’s judgement, I recuse myself from hearing the case,” Justice Khan said.
He referred to a judgement, authored by himself and Justice Isa, issued a day earlier which noted that the chief justice of Pakistan (CJP) did not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.
The original bench — which had conducted three hearings on the PTI petition — was constituted by CJP Umar Ata Bandial. It was headed by the CJP himself and included Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Khan.

Reacting to the development, PTI Chairman Imran Khan tweeted that it didn’t matter whether a five-member SC bench heard the case or a full bench did. “All we want to know is if elections will be held within the 90 days’ constitutional provision.”

He recalled that before the provincial assemblies of KP and Punjab were dissolved, he had consulted top constitutional lawyers, “all of whom were absolutely clear that the 90-day Constitutional provision on the holding of elections was inviolable”.

“Now, the imported government of crooks, their handlers and a compromised ECP are making a complete mockery of the Constitution. By cherry-picking which Articles of the Constitution they will abide by, they are threatening the very foundation of Pakistan, which is the Constitution and Rule of Law.

“So petrified are they of elections and so desperate to whitewash their convicted leaders that they are prepared to destroy the Constitution and any semblance of Rule of Law,” the former prime minister added.

Barrister Ali Zafar — who is representing the PTI in the case — said that the SC must internally address the current issue arising from divergent views among judges.

Speaking to the media outside the apex court, the lawyer suggested that the court either form a full bench or another combination of judges that it deemed appropriate to settle the matter.

Zafar emphasised that the issue at hand concerned a fundamental constitutional matter and was not limited to the composition of court benches. The central question is whether the ECP has the right to postpone elections or to determine their timing, he said.

He stated that there may be a slight delay, but expressed confidence that a new bench would soon be formed to conduct a hearing on the matter.

Zafar emphasised the crucial role of the SC as the “ultimate safeguard for democracy”, hoping that the court would uphold its responsibility to ensure a fair and just resolution of the matter.

Meanwhile, Justice Shahid Waheed of the Supreme Court observed on Thursday that judges could not raise objections regarding the constitution of benches, saying that if they do so they would become a complainant and it would no longer be appropriate for them to hear the case.

He made the remarks in a dissenting note for a suo motu case pertaining to pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

Justice Waheed was part of the three-judge special bench that heard the case. A day earlier, the other two members of the bench, Justice Qazi Faez Isa and Justice Aminuddin Khan, held that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.

“With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks, part of a 12-page judgement he authored.