I Question of jurisdiction will arise every day: Justice Shah.

ISLAMABAD  -  The Supreme Court of Pakistan Monday dismissed the review petition of Pakistan Tehreek-e-Insaf (PTI) against the judgment declaring the intra-party elections were not held as per the Election Act, 2017.

A three-member bench of the apex court headed by Chief Justice Qazi Faez Isa, and comprising Justice Muhammad Ali Mazhar and Justice Musarat Hilali, heard the PTI review petition.

During the hearing, Hamid Khan Advocate argued that the matter be sent to the larger bench as it is involved the constitutional interpretation. The counsel asked the bench to examine para 14 of the majority judgment of eight judges in the PTI reserved seats, as yet no stay has been granted against this order.

The Chief Justice inquired that why they have not raised this issue at the first stage. He said that they would not make any comment on the judgment, as the review against it had been pending. The CJP asked from Hamid that when the judgment on PTI intra-party was announced and when it had filed the review petition?

Hamid Khan informed that the judgment was passed on January 13, 2024. The Chief Justice noted that the party had filed review on February 6, two days before the general elections (February 8). Hamid contended that the intra-party verdict became ineffective the moment eight judges’ order came.

The Chief Justice said that they would not see the subsequent developments. He inquired whether it was in PTI’s knowledge that eight judges would render such judgment on July 12. Hamid Khan then changed his stance and said; “I want to say something, which I avoid.”

The Chief Justice told him, “don’t hold back, and say what you like to say, as I prefer those people who say on my face instead of on TV channels.” Hamid Khan then said; “I will not argue the case before a bench, which is headed by you (Justice Faez).”

Justice Hilali said that when Imran Khan was Prime Minister at that time the Election Commission of Pakistan (ECP) had told him to hold intra-party elections (IPEs), and apprised of consequences. She said that the party did not hold IPEs just to get sympathises. She further said that in 2023 again the ECP had asked PTI to hold IPE. However, no IPEs were conducted.

The Chief Justice questioned the PTI’s lethargy in holding elections. Justice Mazhar remarked that no one from the PTI had challenged Section 215 of the Election Act and its consequences. The law was made with the consensus of all political parties. If the PTI does not hold IPEs, then would this section (215) become redundant. He said Article 17 of the Constitution should be read with the provisions of the law.

Justice Mazhar further said the PTI first had to get section 215 strike down, but they did not do it. In the presence of this section why the party did not hold IPEs. He questioned whether the PTI wanted that the Court read down this section?

Hamid Khan told that they held intra-party election. Upon that Justice Mazhar said according to the record the PTI constitution laid down comprehensive process for holding elections within the party. The PTI constitution says that IPEs will be election in each province, and there is process of filing nomination papers, and appeal.

Justice Mazhar noted that during the proceeding of PTI petition against the Peshawar High Court judgment two divergent views were presented, and the counsel kept on changing the stance regarding submission of nomination forms for IPEs and depositing of fee etc. He proposed that if PTI can’t hold intra-party election according to its own constitution then it should change it.

The Chief Justice questioned that why the PTI leaders are scared of holding intra-party elections. He said why they ignore the founding members like S Akbar Babar and Justice (retd) Wajihuddin and allow them to participate in the elections.

Hamid Khan insisted that the matter be sent to Committee formed under the Supreme Court (Practice and Procedure) Act, 2023, so that it be placed before a larger bench. Barrister Ali Zafar another PTI lawyer, contended that yesterday (Sunday) the Parliament had passed 26th constitutional amendment, so this matter be referred to the constitutional bench.

The Chief Justice said that he does not know about any constitutional amendment. Justice Mazhar asked Zafar that the review petition was filed under Article 188 of the constitution, adding that if the PTI, in the instant matter, had approached this court under 184(3) then it would have been different scenario.

Hamid Khan said that he does not want to argue therefore the Court gave opportunity to other lawyers – Barrister Syed Ali Zafar, Barrister Gohar Ali Khan, Ajmal Toor. Ali Zafar said that he also does not want to argue.

The bench declared that since no illegality or error in the judgment has been pointed out by counsel therefore in view of that the instant petition is dismissed.

Hamid Khan requested that his statement before the bench be recorded “that a judge who is highly biased against the party should not sit in the bench hearing the review petition.”

The Chief Justice asked him that in the last hearing he had filed an application for adjournment, and no objection raised on the bench. Hamid replied that they have raised this objection orally.

Upon that Justice Mazhar said that the application of biasness is filed, adding that it can’t be done orally. Justice Musarrat questioned how they are biased. She further said that in the application PTI has prayed to form a larger bench, but no point of biasness of the bench has been mentioned in it.

Meanwhile, the Supreme Court of Pakistan on Monday adjourned hearing for three weeks on an appeal against the decision of high court regarding the Competition Commission of Pakistan (CCP).

During the hearing, Justice Syed Mansoor Ali Shah raised the question that whether this case would be heard by here or it would be transferred to the constitutional bench.

Justice Shah remarked that the court is adjourning the case for three weeks by which time the situation will be more clear. Justice Ayesha Malik said that read the new amendments, Article 199 case cannot be heard here.

Justice Mansoor Ali Shah said that anyway, it will take some time for us to understand this. On the heels of the 26th Amendment’s passage, Justice Mansoor Ali Shah on Monday remarked that the question of jurisdiction would “arise every day” in the Supreme Court (SC) following legislation on constitutional benches.

Barrister Farogh Naseem, on the occasion, said that the political cases have become now constitutional cases. The further hearing of the case was then adjourned.