File photo. Farooq Naeem—AFP
The Supreme Court on Monday dissolved a nine-member bench formed to hear a suo motu on a date for elections in Punjab and Khyber-Pakhtunkhwa after four judges recused themselves from the proceedings.
While Justices Athar Minallah and Yahya Afridi recused themselves on the basis of them not agreeing with the need for a suo motu on the case, Justices Ijazul Ahsan and Mazahar Ali Akbar Naqvi stepped aside because of ongoing calls for them to not hear a case that they had advised Chief Justice of Pakistan (CJP) Umar Ata Bandial to take up.
With the recusal of the four judges, the bench that would hear the case going forward is comprised of five members—the CJP and Justices Mansoor Ali Shah, Munib Akhtar, Jamal Khan Mandokhail and Muhammad Ali Mazhar. It resumed hearings into the case around 1:30 p.m. after two delays in earlier scheduled timings of 11:30 a.m. and 12:30 p.m, with the CJP directing counsels to argue on the maintainability of the suo motu.
Judicial order
In its judicial order for the suo motu proceedings of Feb. 23—issued on Feb. 27—the apex court has noted that it has two constitutional petitions before it related to a delay in announcing elections for Punjab and Khyber-Pakhtunkhwa, whose assemblies were dissolved by the Pakistan Tehreek-e-Insaf (PTI)-led government in mid-January.
It noted that President Arif Alvi had announced a date for the polls—April 9—exercising his powers under Section 57(1) of the Elections Act, 2017, while petitions seeking a date were still pending before the Lahore High Court and the Peshawar High Court. As Article 224 of the Constitution requires general elections for any dissolved assembly within 90 days, and significant time has already been consumed in the pending proceedings, reads the order, the CJP had decided to invoke his suo motu powers to hear arguments on three questions: (1) who has the constitutional responsibility to fix a date for elections to a provincial assembly? (2) how and when this constitutional responsibility will be discharged? (3) what are the responsibilities of the federation and province with regards to holding elections?
The order states that notices have been issued to the attorney general for Pakistan (AGP) and the advocate generals of all four provinces and Islamabad to assist the court on the three stated questions. Notices, it said, have also been issued to the Election Commission of Pakistan (ECP); the Government of Pakistan through the Cabinet secretary; and the Punjab and Khyber-Pakhtunkhwa governments through their respective chief secretaries. The governors of Punjab and KP, as well as the president, could also place provide their points of view through their principal secretaries, it added.
On the request of the AGP, all major political parties in Parliament have also been issued notices.
The order also notes that Justice Minallah, during the first day of proceedings, had raised questions on the legitimacy of the dissolution of the two assemblies, while Justice Shah had sought the court to examine whether they could be restored. “These points are reflected neither in the petitions before the court nor the request for invoking the suo motu jurisdiction. These points, may subject to the foregoing, be considered at an appropriate stage while keeping in mind the urgency in the matter,” it added.
Justice Jamal Khan Mandokhail
Four judges have written dissenting notes, which are attached with the judicial order. In his judicial order, Justice Mandokhail—who had read out his note on Thursday—stressed that the suo motu action was not justified as cases were already pending in high courts. He also noted that Justices Naqvi and Ahsan had already expressed their opinion on the suo motu, as had the CJP, and had formed “definite opinions … without taking into consideration Article 10A of the Constitution.” Thirdly, he had noted the release of audio recordings in which a lawyer is discussing the case of Lahore CCPO Ghulam Mehmood Dogar with the former chief minister of Punjab, which had raised serious questions.
Justice Mansoor Ali Shah
In his dissenting note, Justice Shah says judges can only recuse themselves from a bench formed by the CJP if they provide “lawful justification,” as “mere recusal may amount to abdication of the constitutional and legal duty.” Noting this was why he was not recusing himself, he maintained that he had “reservations” on both the constitution of the bench and the justification of the suo motu notice. “I … find it my constitutional and legal obligation to bring on record my reservations, lest it may be misunderstood that I have none and my silence taken as my assent,” he states.
Noting the suo motu had arisen from a judicial order of a two-member bench—comprising Justices Ahsan and Naqvi—wherein they had recommended it while hearing an unrelated case of a civil servant, he said this had reflected “to an ordinary reader of the order an unnecessary interest of the two-member bench in the matter.” This order attracted further controversy, he noted, due to audio leaks related to one of the judges of the bench—Naqvi. “Inspite of the requests from within the court and outside the court, there has been no institutional response to the allegations either by this court or by the constitutional forum of the Supreme Judicial Council,” he said, adding there was also reports of references being filed against the judge before the Supreme Judicial Council.
“In this background and before these allegations could be probed into and put to rest, inclusion of the said member on the bench in the present matter of ‘public importance’ appears, most respectfully, inappropriate. This inclusion becomes more nuanced when other senior honorable judges of this court are not included on the bench,” he wrote.
Referring to the CJP’s order invoking suo motu in the case, he said that despite it being described as a matter of “great public importance,” the two senior-most judges of the apex court had not been included in the bench, “for reasons not expressed” in the order constituting the present bench.
“Our greatest strength as an apex judicial institution lies in the public confidence and public trust people of our country repose in us. Our impartiality, including the public perception of our impartiality, transparency and openness in dispensing justice must at all times be undisputed and beyond reproach,” the dissenting note added.
Recused judges
In their dissenting notes, both Justices Afridi and Minallah have recused themselves from the bench. Justice Afridi said it would “not be appropriate” to invoke suo motu when the case was already pending before the LHC and PHC. Stressing that the court needed to show judicial restraint in the current politically charged scenario to “bolster the principle of propriety,” he said any findings or remarks would serve to prejudice the claims of parties contesting cases in the LHC and PHC, as well as “offending” the hierarchical judicial domain of the High Court. “Having decided that exercising powers under Article 183(3) of the Constitution in the present three petitions pending before us would not be appropriate, I find that my continuing to hear the said petitions is of no avail,” he added.
Justice Minallah concurred with Justice Afridi, adding that the order does not appear to be consistent with the proceedings and order dictated in the open court on Thursday. “The questions raised before us cannot be considered in isolation because questions regarding the constitutional legality of the dissolution of the provincial assemblies of Punjab and Khyber-Pakhtunkhwa cannot be ignored,” he wrote, reiterating questions he had raised on Thursday over whether the two assemblies were dissolved in violation of the principles of constitutional democracy.
“The questions regarding the legality of the dissolution involved far more serious violations of fundamental rights,” he wrote, adding the matter pending before the court was “premature.” Recalling that the CJP had during the hearing accepted to include for consideration his questions on the dissolution of the assemblies, and had duly acknowledged and announced their inclusion, he said he had formulated three questions: (1) Whether the power of a chief minister to make advice for the dissolution of the provincial assembly is absolute and does not require any valid constitutional reason for its exercise? (2) Is a chief minister to make such advice on his own independent opinion or can he act in making such advice under the direction of some other persons? (3) If such advice of a chief minister is found constitutionally invalid for one reason or another, whether the provincial assembly dissolved in consequence thereof can be restored?
Stressing that interpreting the Constitution was the prerogative and duty of the Supreme Court, Justice Minallah wrote that it had a “profound impact on the lives of the people in the country, besides having consequences for future generations.” He said he believed it was implicit in the language of Article 184(3) that the “conferred extraordinary original jurisdiction must be entertained and heard by the full court.”
In their notes, both Justices Minallah and Afridi maintained that they would leave the matter of whether or not they should leave the bench up to the CJP.