Larger bench hearing polls delay case dissolved

Sohail Khan
Friday, Mar 31, 2023

ISLAMABAD: A five-member larger bench of the Supreme Court of Pakistan, hearing a petition against delay in election to the Punjab and Khyber-Pakhtunkhwa assemblies, was dissolved on Thursday after Justice Aminuddin Khan recused himself from the case hearing.

The SC was set to resume the hearing of Pakistan Tehreek-e-Insaf’s plea against the Election Commission of Pakistan (ECP) decision to defer the elections in Punjab and KP at 11:30am, but the hearing was delayed following Justice Aminuddin’s recusal.

An SC bench, headed by Justice Qazi Faez Isa, Wednesday ordered the postponement of cases being heard under Article 184(3) of the Constitution till approval of the amendments made to the Supreme Court Rules 1980 regarding the discretionary powers of the chief justice to form benches.

Justice Aminuddin concurred with Justice Faez Isa while Justice Shahid Waheed dissented with the majority order of 2-1 in a suo moto case on the grant of 20 marks to Hafiz-e-Quran students while seeking admission to MBBS/BDS degree under Regulation 9(9) of the MBBS and BDS (admissions, house job and internship) Regulations, 2018.

At the outset of Thursday’s hearing, when the five-member bench came to the courtroom, Chief Justice Umar Ata Bandial said Justice Amin wanted to say something. At this, the judge said: “I recuse myself from the instant case in the light of the SC order, issued by Justice Qazi Faez Isa.”

The original bench comprised CJP Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Aminuddin, and Justice Jamal Khan Mandokhail.

CJP Umer Ata Bandial deliberated with fellow judges for the constitution of a new bench in his chamber; however, later on, the court assistant informed the media that the bench without Justice Aminuddin Khan would hear the matter on Friday at 11:30 am.

The PTI had moved the apex court following the ECP decision to postpone the Punjab polls from April 30 to October 8 after financial and security authorities expressed their inability to support the electoral process.

Separately, Justice Shahid Waheed said in his dissenting note, released on Thursday, that a special or regular bench is constituted by an administrative order of the chief justice, and no court should try any question and also pass an order that is not directly and substantially in issue in a case pending before it. He said that the first point to be examined is whether the objection to the constitution of the bench could be brought under consideration in this case.

“I think it cannot for two reasons. First, a bench, special or regular, is constituted by an administrative order of the hon’ble chief justice, and as such, the present bench, in conformity with the principle settled in Suo Moto Case No4 of 2021 (PLD 2022 SC 306), has been lawfully constituted to hear this case.” Justice Waheed further held that the judgment in Suo Moto Case No4 of 2021 is of a five-member bench and, thus, takes precedence over all precedents of this court regarding the power of the chief justice to constitute any kind of bench. The judge noted that it appears that, for this reason, neither the Attorney General of Pakistan nor the PMDC lawyer had any objections to the constitution of this bench.

“Given these circumstances, in my humble view, none of the judges on this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon,” Justice Waheed held.

He noted that this reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in his case, adding that this principle confines not merely to the case where the judge is an actual party to a case but also applies to a case in which he has an interest.

“Furthermore, judicial propriety requires that if any judge of the bench has any objection, the proper course for him is either to recuse himself from the bench or to refer the matter to the chief justice with the concurrence of other judges of the bench, so that the case is assigned to some other bench,” the judge held.

Secondly, Justice Shahid Waheed held the administrative order of the chief justice on the constitution of the bench becomes a fait accompli when a judge in compliance therewith starts hearing the case. “Hence, any member of this bench, after having accepted the administrative order of the hon’ble chief justice, is stopped from questioning the constitution of the Bench on the well-known doctrine of estoppel,” Justice Waheed noted.

“I now advert to the other question relating to the validity of the prohibition order issued by the Pakistan Electronic Media Regulatory Authority (PEMRA), through which all satellite TV channel licensees were forbidden to telecast anything against state institutions and not to discuss the conduct of the sitting judges of the high court and Supreme Court in any manner. Can this also be considered in this case,” the judge continued.

“Again, I am at odds with my learned brethren. To keep the record clear, I deem it pertinent to mention that this question was not agitated by any lawyer; on the contrary, it was brought under discussion by the learned senior member of this bench, and copies of the prohibition order were also presented by his law clerk to the other members of the bench, the attorney general, and PMDC’s counsel,” Justice Waheed noted.

The judge further held that although much can be said on this question, it suffices to say that it would be otiose to discuss it here, as it was neither urged by any counsel nor raised in the pleadings. The judge further noted that no party was on notice to address this question. Pemra was also not in attendance to present the rationale of the Prohibition Order.

“Therefore, in my view, the principle of fairness obliges us not to express a definite opinion on this question until all concerned have had an opportunity of being heard,” the judge continued.

In the case at hand, Justice Shahid Waheed held that the matter in issue is whether learning the Holy Quran by heart is a relevant criterion for the determination of the candidates for an MBBS or BDS degree.

“Indubitably, the above-stated second question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon,” the judge held.

In the aforesaid circumstances of the case, Justice Shahid Waheed observed that the appropriate order would be to allow the Attorney General of Pakistan and the PMDC to file their respective concise statements before the next date of hearing.

The judge noted that on January 10, 2022, Civil Petition No397-K of 2002 had come up for hearing before a division bench comprising Justice Qazi Faez Isa and Justice Yahya Afridi and was dismissed with the following directions:

This petition has brought to the fore Regulation 9(9) of the Regulations and the awarding of twenty additional marks to those candidates who have memorised the Holy Quran. Whether the memorisation of the Holy Qur’an is a relevant criterion for the determination of the candidates for an MBBS or BDS degree needs consideration.

It also needs to be considered whether Regulation 9(9) of the Regulations conforms with Article 25 of the Constitution of the Islamic Republic of Pakistan. Therefore, while dismissing this petition, we retain its paper trail to Suo Moto Case No. 4 of 2022 to consider this aspect of the case.

Notice be issued to the Pakistan Medical and Dental Council, which we are informed is now the Pakistan Medical Council, and the Council is directed to submit a concise statement that should address the aforesaid queries and explain how the memorization of the Holy Quran makes a candidate more eligible for an MBBS or BDS degree.

The Council should also file the decision that led to the incorporation of Regulation 9(9) in the Regulations and the reasons, if any, for such incorporation.

“Notice be also issued to the Attorney General of Pakistan in terms of Order XXVII-A of the Code of Civil Procedure, 1908.”

In compliance with the above directions, the office issued notices to the parties concerned for the submission of a concise statement. The notices were not responded to, and this inaction was brought to the attention of the Judges of the Division Bench by a note placed before them in their chambers, wherein the office was directed in the following terms:

“...Since the concerned, despite four reminders, have adamantly refused to respond, it may be appropriate to fix this matter in court to the extent of the points noted in paragraph 2 of the order dated January 10, 2022”.

Under the above, the office solicited the order of the Chief Justice as to whether (a) a civil miscellaneous application may be registered for non-compliance of order dated 10.01.2022 and the matter be fixed before the bench headed by Justice Qazi Faez Isa, at Principal Seat Islamabad, or (b) any other order may be passed as deemed appropriate”.

Upon this note, the chief justice had made the following order: “Treat the order dated 10.01.2022 as a recommendation for the invocation of suo moto jurisdiction. Allowed.”

In the above background, Justice Shahid Waheed said that this bench has been constituted by the chief justice under his administrative powers only to consider the points framed in the order dated January 10, 2022, issued in Civil Petition No. 397-K of 2002.

Be it noted that during the proceeding of any case, a court ordinarily passes three types of orders. The first type of order is that of a regulatory nature, whereby the proceedings of the case are regulated, managed, or controlled.

The second type of order relates to a formal decision of Suo Moto Case No4 of 2022 by a court about a claim or dispute, and this may be called an adjudicatory order. While the third type is a regulatory or cumbersome adjudicatory order, it not only contains a formal expression of any court decision on a particular issue but also a direction for further progress in the case.

In light of the above classification of the orders, it is to be seen what kind of order is necessitated in this case. When we assembled for the hearing of this case, at the outset, the Attorney General of Pakistan had sought an adjournment to file a concise statement, while the PMDC counsel had submitted that the impugned regulation has been withdrawn, and thus, time should be granted to him to bring the amended regulation on record.

So, in my view, the requests for adjournment alone were to be considered by the bench, and our order ought to have been confined to them. This means a regulatory order was to be passed.

“On the contrary, I find that the said requests have been left unattended, but certain other points have been discussed in the order that has led me to record this dissenting note,” Justice Waheed concluded.

It is pertinent to mention that in its order, the court had held that neither the Constitution nor the rules grant the chief justice or the registrar the power to make special benches, select judges who will be on other benches, and decide the cases they will hear.

The court had further held that there is no procedure prescribed for the second and third categories of cases, adding that the situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution.

Similarly, the court had held that the rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how benches to hear such cases be constituted, and (c) how judges hearing them are selected.

“The Constitution does not grant the chief justice unilateral and arbitrary power to decide the above matters,” the court had held.