New SC bench to hear case today n Justice Shahid Waheed says doctrine of estoppel bars judges from questioning constitution of bench n Justice Amin decided to recuse himself in light of Justice Isa’s judgment.
ISLAMABAD - A bench of the Supreme Court sans Justice Amin ud Din will today hear the petitions against the Election Commission of Pakistan (ECP) for delay of elections in the Punjab and Khyber Pakhtunkhwa provinces.
A five-member bench of the apex court headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Amin-ud-Din Khan, and Justice Jamal Khan Mandokhail Thursday assembled in the Courtroom No.1 for hearing of Speakers Punjab and KP and the Pakistan Tehreek-e-Insaf (PTI) petitions.
At the outset of hearing, Justice Bandial said that Justice Amin wanted to say something. Subsequently, Justice Amin said that in view of a judgment on suo moto power of the Chief Justice of Pakistan, released a day ago (March 29) by a three-judge bench, of that I was member, I want to recuse from the bench.
Justice Amin had supported the judgment, authored by Justice Qazi Faez Isa, while Justice Shahid dissented.
After the recusal of Justice Amin, the five-member bench was dissolved and the judges retired to their chambers. At around 4:30 p.m. a court assistant announced in the courtroom that “a bench without Justice Amin ud Din will hear the petitions tomorrow (Friday).”
A three-member bench, headed by Justice Qazi Faez Isa, and comprised Justice Amin-ud-Din Khan and Justice Shahid Waheed with the majority of 2 to 1 had released the judgment on Wednesday (March 29), which said: “Hearing of all the cases under Article 184(3) of the Constitution be deferred until the changes are made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.” Justice Amin endorsed Justice Qazi’s views, while Justice Shahid dissented.
With regard to article 184(3) of the Constitution, the order said that there are three categories of cases. “Firstly, when a formal application seeking enforcement of fundamental rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases.
It said that the situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. It added, “The Rules also do not provide how to attend to the following matters: (a) how such cases be listed for hearing, (b) how bench/benches to hear such cases be constituted and (c) how judges hearing them are selected.”
Meanwhile, Justice Shahid Waheed, in his separate note, released on Thursday, held that any member of the bench, after having accepted the administrative order of the Chief Justice of Pakistan (CJP), is stopped to question the constitution of the bench on the well-known doctrine of estoppel.
“None of the judges of 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,” stated Justice Waheed.
He further said: “this reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.” He noted that the bench in the suo moto case “has been lawfully constituted to hear this case”.
