SC’s Justice Panhwar recuses himself from hearing reserved seats case

As the Supreme Court’s Constitutional Bench resumed hearing review petitions in the reserved seats case, Justice Salahuddin Panhwar recused himself from the bench following an objection from senior counsel Hamid Khan.

In its July 12, 2024 short order, eight out of 13 judges ruled that 39 out of a list of 80 MNAs were and are the returned candidates of the PTI, setting it to emerge as the single largest party in the National Assembly.

However, the ruling had not been implemented by the National Assembly, while the Election Commission of Pakistan (ECP) had raised some objections. The review petitions against the SC order had been filed by the PML-N, the PPP and the ECP.

An 11-member bench headed by Justice Aminuddin Khan resumed the hearing today.

Initially, a full-strength 13-member CB led by Justice Aminuddin took up the review pleas on May 6. However, Justices Ayesha and Abbasi declared the applications as inadmissible and were not part of the subsequent proceedings, with the CB head judge noting they had stepped back voluntarily.

Justice Ayesha had formally complained to Chief Justice of Pakistan (CJP) Yahya Afridi about her dissenting order not being uploaded to the SC’s website.

In her judgement, she had criticised the ECP for not implementing the earlier order, observing that it would “not only undermine the authority of the Supreme Court but also erode the foundational values of democracy itself”.

The SIC, which allied with the PTI during the 2024 elections and was a party in the reserved seats case, had requested the bench to put off the hearing until challenges to the 26th Amendment were decided and to include judges who had heard the original case.

However, the CB dismissed those pleas, with Justice Aminuddin observing that review petitions could be heard even by a bench smaller than the original bench after the 26th Amendment.

The hearing

Justice Panhwar noted that Hamid Khan, counsel for the Sunni Ittehad Council (SIC), had yesterday raised an objection to the bench.

“Hamid Khan raised an objection to the inclusion of judges in the bench who came to the Supreme Court after the 26th Amendment in the bench,” Justice Panhwar said, noting that he is one of the judges included in the objection.

“Public trust in the judiciary is essential,” Panhwar stated.

“It is essential that no party has any objection to the bench,” he said. “It is because of these objections that I cannot sit on this bench.”

The judge told Khan that although he was hurt by his remarks — having worked together since 2010 — this was not a personal matter.

Khan said he appreciated Panhwar’s decision.

However, Justice Aminuddin Khan told him that this was not a matter to be appreciated. “This is a result of your conduct,” he said.

“We gave you respect, that’s why we are listening to you, otherwise we were not under any obligation to hear you,” Justice Khan said. “We gave you this opportunity, don’t misuse it.”

Following Justice Panhwar’s recusal, the SIC’s counsel also objected to a 10-memebr bench taking up the hearing.

To this, Justice Mandokhail questioned under which law the counsel was making this argument.

Justice Mandokhail added that the 10-member bench will continue hearing cases.

“Giving respect is what gets you respect,” he told Khan. “Whatever respect you have today is because of the Supreme Court.”

“Today we are here, tomorrow we will not be here, you will not be here,” Justice Mandokhail said.

The SIC counsel told Justice Mandokhail not to use the case if he was angry.

Justice Aminuddin interjected here, asking the SIC counsel what objection he had.

“My objection is that a twelve-member bench cannot hear the review of the decision of a thirteen-member bench,” Khan said.

Justice Aminuddin rejected this objection and asked him to proceed with his arguments.

Here, the debate between Khan and the judges became heated.

“The SIC lawyer had given his arguments, you had no right to speak,” Justice Mandokhail said. “We gave you respect.”

The SIC counsel responded saying: “you are not authorised to tell me not to speak.”

Justice Mandokhail told Khan that the SIC had appointed Faisal Siddiqui as its lawyer, not him. “You have 10 minutes to make your argument, otherwise sit down.”

Khan said: “You are angry, do not hear the case just now.”

The conversation continued in a confrontational manner, with Justice Mandokhail telling him to sit down if he does not want to present his arguments.

“I know how to do my job, you be careful with your words,” Justice Mandokhail said. “I have skipped my mother’s funeral to be here and you are joking.”

He noted that the bench would not hear anything irrelevant and had already heard enough.

“We consider you a good lawyer, but what you are doing right now is not the work of a good lawyer,” Justice Mandokhail said.

Khan told him he had no right to say such a thing, to which Mandokhail again reminded him he had 10 minutes to present his arguments.

“It’s not as if we don’t know how to be strict.”

The SIC counsel asserted that the Judicial Commission forms a bench, to which Justice Mandokhail asked him under which law he has made this assertion.

“According to Article 191A of the 26th Amendment,” Khan said.

“You are against the 26th Amendment, how are you now referencing it?” Justice Mandokhail quipped.

“This is why I had said to make a decision on the 26th Amendment first,” Khan said.

Khan asked if the SC made the amendment. Justice Mandokhail asked if he, as a senator, had voted against the amendment, which the SIC counsel affirmed.

“You all boycotted it,” Justice Mandokhail said.

“As long as it is like this, either you accept it, or say you don’t and leave the practice of law.”

Justice Aminuddin said the bench would take a break from the hearing till 2pm, with Justice Mandokhail adding that the bench was aiming to pronounce a verdict today.

More to follow