1. Developments related to judiciary since Parliament enacted 26th amendment in Oct 2024 confirm fears this was no sincere “reform” to make judges “accountable”

Instead, what we see is the most blatant attempt at judicial capture by an insecure regime struggling with legitimacy: 2. On 23 October, a Special Parliamentary committee nominated J. Yahya Afridi as CJP

The committee’s proceedings were held in camera (as provided by the 26th amendment). Any criteria for assessment or reasons for the Committee’s choice were not made public

Justice Babar Sattar’s order in Bushra Bibi’s case provides a comprehensive overview of our law regarding recusal for judges

These principles are informative as we assess PTI’s recusal requests against CJP and Justice Aamer Farooq: 1. The constitution and the law do not give a litigating party the “right” to demand recusal

Instead, the obligation is on the judge to seek recusal and they should determine their own disqualification to hear a case

Summary of SC judgment today:

1. Majority of 8 judges hold even without a common symbol, PTI is and was a political party

39 candidates who mentioned PTI in their (i) declarations or (ii) statements, or (iii) submitted PTI’s certificate would be considered PTI candidates In addition, due to “peculiar facts and circumstances” at the time of elections, the remaining 41 candidates may make a fresh declaration of affiliation within 15 days. If the concerned party confirms affiliation, that candidate too would be considered the party’s candidate

1. The “seniority” principle and the “legitimate expectation” of senior most high court judges to be appointed CJs + judges of the SC are once again being debated after Justice Aalia Neelum’s nomination as CJ LHC

What are these principles and are they even relevant today? 2. These principles are often traced back to the Al-Jehad Trust case (Judges case), 1996

At that time, SC judges were appointed by the President (on PM’s advice) after consultation with CJP

CJs of High Courts were appointed by the President in consultation with CJP + Governor

1. A brief constitutional history of intra-party elections, which shows they cannot be used to deny rights protected by Art 17(2):

(Note: Courts have interpreted Art 17(2) to include right to function as a political party + right of citizens to vote for a party of their choice) 2. In 2002, General Musharraf amended the Constitution through the Legal Framework Order

He added 17(4) to the Constitution, which said:

“(4) Every political party shall, subject to law, hold intra-party elections to elect its office-bearers and party leaders”

Why the SC should not interpret S. 215 of the Elections Act as empowering the ECP to deny political parties electoral symbols on the basis of irregularities in their intra-party polls: 1. The law is ambiguous. It does not expressly give ECP power to scrutinise intra-party elections, and on the basis of irregularities, deny electoral symbols

The law also doesn’t set any threshold for when irregularities are serious enough to lead to denial of electoral symbol

1. There is ambiguity in the law regarding ECP’s power to refuse electoral symbols on the basis of irregularities in intra-party elections

Ideally, SC should clarify this issue + provide an interpretation of the Elections Act that is consistent with Art 17(2) of the Constitution 2. Section 208 of the Elections Act provides the legal framework for intra-party elections

If parties don’t hold timely elections, they can be fined

The provision doesn’t expressly provide consequences for procedural violations of the law + party constitutions in such elections

1. A few thoughts on #Hadsa; the campaign by many activists and progressives for it to be taken off air for its insensitive/triggering portrayal of sexual violence as well as failure to take the consent of a rape survivor with a similar story; and its eventual ban by #PEMRA 2. I’ve been watching Hadsa since it started, largely because I really respect Hadiqa Kiyani’s choice in scripts

I expected it to be different from GEO’s typical content, where women exist to serve the men in their lives and have little agency. And I was not disappointed

A number of commentators are claiming the President doesn’t have the authority to appoint the date for elections to the National Assembly

The reasons they are giving are not supported by relevant laws or how they’ve been interpreted by courts: 1. First, they say recent amendments to S. 57/58 of the Elections Act empower ECP to appoint the date, not the President

These provisions, however, are subject to (and subservient to) the Constitution

And Art 48(5) of the Constitution clearly gives this power to the President

Four of the most striking aspects of the SC’s very problematic judgment that strikes down Supreme Court (Review of Judgements and Orders) Act, 2023, in its entirety for being ultra vires the Constitution: 1. SC fails to acknowledge how its own expansive interpretation of Art 184(3) has disturbed our constitutional scheme

Where is “express authorization” to allows SC to assume jurisdiction “suo motu”? Fix prices? Declare parliamentarians are not honest/truthful? Create dam funds?

J. Isa’s dissent related to trials of civilians accused of terrorism in military courts is particularly relevant today. He wrote:

“Military personnel, who will preside over the trials, are part of the Executive, and it goes without saying that they are not part of the Judiciary” “The military, which is a part of the Executive, cannot conduct criminal trials of civilians because judicial power can only be exercised by the Judiciary”

SC benches since 2017 that heard politically significant cases under Art 184(3) + related matters, as well as Art 186 (advisory jurisdiction)

Some names are glaringly conspicuous by their presence; many by their absence

Coincidence? July 2017: Panama judgment - Nawaz Sharif was disqualified for his failure to disclose un-withdrawn receivables that SC held constituted his “assets”

J. Khosa
J. Gulzar
J. Ejaz Afzal Khan
J. Azmat Saeed
J. Ijaz ul Ahsan (also the monitoring judge)

1. In a conference held yesterday on the “sanctity of the constitution and judicial independence in Pakistan”, our senior lawyers rightly emphasised the importance of timely elections

Their views on the “divide” in the SC, however, are far more telling and quite unfortunate 2. Their resolution states “central” issue is elections, and views what is happening in SC largely from that perspective

It says SC “divide” is not on principle, but because of judges’ “egos” and “linkages” with parties, and judges should resolve matters “in due deliberations”

1. CJ’s discretionary powers (and their (mis)use) lie at the heart of the current crisis in and of the Supreme Court

These include powers to initiate nominations of SC judges; to invoke suo motu jurisdiction; and most importantly, to constitute benches and allocate cases 2. UN standards + comparative best practices are clear: cases should be allocated through objective mechanisms. This power should not rest with CJ

In addition, certain factors peculiar to Pakistan have made what appears to be a mere administrative power an extremely critical one

The social media campaign against the Transgender Persons (Protection of Rights) Act, 2018, is malicious, opportunistic and entirely baseless

Some facts and context: 1. The law was enacted in 2018 after months of research, deliberations and consultations

It had support from all major parties (eg PML-N, PPP, PTI); NCHR; members of Council of Islamic Ideology, civil society groups, and most importantly, khawaja sirah and transgender community

1. It was actually 9 (not 8) judges who in 18th amendment judgment understood Art 63A to mean party head gives direction on how to vote

See J. Dost M Khan’s opinion below (unlike the others, he raises concern about party head’s powers)

Why didn’t SC mention this in its order? 2. SC suggested 3 judges found Art 63A so insignificant they didn’t even mention it

Truth is CJ Mulk, J. Khosa, J. Rahman didn’t analyse 63A (like most other provisions of 18th amendment that were challenged) as they held SC doesnt have power to review const amendments at all

1. Why SC’s re-writing of Art 63A is the cause of the continuing crisis in Punjab:

Before SC re-wrote Art 63A, the defection process was clear: if MNAs/MPAs voted against party line in certain situations, the party head could, after show cause, issue a defection declaration 2. ECP, after giving them a fair hearing, could decide whether or not to de-seat

Qs such as whether there was a party direction; who the direction was to come from; whether it was communicated to members etc. were decided by ECP at this stage after hearing all parties

1. It is surprising to see so many lawyers interpreting directions of a “parliamentary party” in Article 63A as directions of the “leader of the parliamentary party” as opposed to party head

The SC in a number of judgments has held otherwise: 2. See, for example, PLD 2018 SC 97 (Justice Bandial was a member of the bench), where the SC refused to uphold a declaration of defection because there was no “specific direction of the party head” asking members to abstain

Note: Court expressly uses “direction of party head”

Justice Ijaz ul Ahsan was appointed as a judge of the Supreme Court in 2016 and is going to become the Chief Justice of Pakistan after J. Qazi Faez Isa’s retirement in Sept 2024

A snapshot into his contribution to Pakistan’s constitutional and public interest jurisprudence: 1. Justice Ahsan was part of the bench that heard the Panama case, and was one of the three judges who ordered the formation of a JIT (inc. MI, ISI representatives) to inquire into Sharif family’s corruption

He was also a member of the implementation bench of the Panama judgment

Why in my view the SC majority opinion on Art 63A is legally unsound:

1. Text of 63A is clear: MPAs/MNAs who vote against party line in certain cases are de-seated

Parliament, rightly or wrongly, did not say their votes will be discarded

SC cannot re-write the Constitution 2. Majority says vote cast by members contrary to party direction won’t be counted

But what about abstentions against party line?

If in CM Punjab election, PML-N members abstain instead of voting for Hamza Shehbaz, is their abstention going to be deemed as a vote in his favour?

1. Federation of Pakistan vs Haji Saifullah (PLD 1989 SC 166) is being quoted to argue that even if SC finds National Assembly was dissolved in violation of Art. 58, it may still decide not to restore the National Assembly

What was this case about? And why was this the outcome? 2. The judgment relates to the removal of Junejo’s Government through dissolution of assemblies by Zia under Art 58(2)(b) on the basis that the machinery of the Government had broken down completely and it cannot be carried on in accordance to the Constitution