CJP expresses concern over sharing of Justice Mandokhail’s dissenting note on social media n Justice Ijaz, Justice Mazahar Naqvi, Justice Yahya Afridi, Justice Minallah recuse from the bench.
ISLAMABAD - Four judges of the Supreme Court of Pakistan Monday dissociated themselves from hearing the suo motu case regarding the delay in the announcement of dates for the election of Punjab and Khyber Pakhtunkhwa (KP) provincial assemblies.
Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial on February 22 took the suo motu notice over the delay in the election of two provincial assemblies, and constituted a nine-member bench to hear the case.
Justice Ijaz Ul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Athar Minallah and Justice Yahya Afridi dissociated themselves, while the five-member bench headed by CJP and comprising Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar continued hearing of the case.
At the outset of the proceedings, CJP Bandial said four members had dissociated themselves from the case, however, the remaining bench would continue hearing the case for the interpretation of the Constitution.
He expressed his concern over Justice Mandokhail’s dissenting note being shared on social media prematurely, which he deemed highly inappropriate. He said the dissenting note could not be shared until the order was published on the official website. The chief justice said the court would resume hearing the case at 9:30 am Tuesday (today) and try to wrap it up the same day.
Justice Ijaz ul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi accepting the plea of three major political parties of the incumbent government and the Pakistan Bar Council that as they have disclosed their mind, in a note wrote to the CJP for taking suo motu, recused from the bench, while Justice Yahya Afridi and Justice Athar Minallah graciously dissociated from the bench.
Justice Syed Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah in a discussion/ deliberations in the ante-Room of the Courtroom No.1 referred the matter to the Chief Justice for reconstitution of the Bench.
In view of the plea of four judges, the Chief Justice constituted a five-member bench of the apex court headed by him and comprised Justice Syed Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar for hearing the matter of delay of holding the elections in the Punjab and the KP. The bench resumed hearing at 1:20 though the case was fixed at 12:00.
During the hearing, the Chief Justice noted that main issue before the Court is who would announce the date, adding after the date functions of the Election Commission of Pakistan to hold elections in the Punjab and the KP would start.
Justice Jamal Khan Mandokhail questioned; if the ECP is ready to hold the elections, but God forbid there are no funds then what will happen? Barrister Ali Zafar argued if there is no money then would the nation wait for resources for 10 years. Justice Muneeb remarked there are money for cricket match country-wide, but not for elections. He said under the Article 220 it shall be the duty of all executive authorities in the Federation and in the Provinces to assist the Commissioner and the Election Commission in the discharge of his or their functions.
Justice Mansoor observed if the court holds that the election be held tomorrow then can the
ECP do it. He said they don’t know about the preparedness of the ECP, but there has to be reasonable time-frame for that. He said the Court has to see when the 90 days will start, whether it will start with the dissolution of the Assembly or when the President has announced the date. He questioned if the Governor also gives the date then which date will prevail? Whether of the President of the Governor?
Ali Zafar informed the bench that 90 days of the dissolution of the Punjab would expire on April 13 and after that the ECP has 14 days to announce the result.
Justice Mazhar noted that there is no provision in the constitution and the statute for the postponement of the election. Upon that Justice Mansoor remarked irrespective of what is happening in the country? Justice Muneeb responded to the brother judge remark and said the Court should have no concern with what is happening outside as it has this nothing to do with it. He said if the Governor fails to act under Article 105 (3) to appoint a date for elections then the President after waiting quite some time has announced the date under Section 57 (1) of the Election Act, 1999.
Justice Mansoor observed that when power of dissolution is with the Governor, then why not leave it to the Governor to announce the date. The chief justice said: “We should not interfere with the wisdom of the Parliament; the power is given to the ECP to hold elections.”
Justice Yahya Afridi in his note stated that it appears that prima facie these petitions fall within the purview of Article 184(3) of the Constitution. However, it would not be judicially appropriate to exercise the power to make an order under the provision of the Constitution given that the matters raised in the petitions are presently pending adjudication before the Lahore High Court in Intra-Court Appeal, contempt petition, and the Peshawar High Court in writ petition.
He further stated that passing any finding or remarks during the proceeding of the present petitions by this Court would not only prejudice the contested claims of the parties in the said petition/ appeal- pending before the respective High Courts but, more importantly, offend the hierarchical judicial domain of the High Court as envisaged under the Constitution. It would also disturb the judicial propriety that the High Court deserves in the safe, mature, and respectful administration of justice. Accordingly, I dismiss these three petitions.
“I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions,” he further said.
Justice Minallah in his noted said; 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. Were they dissolved in violation of the scheme and principles of constitutional democracy before completion of the term prescribed under the Constitution?
He added, “The questions regarding the legality of the dissolution involve far more serious violations of fundamental rights. The matter before us is definitely premature, because it is pending before a constitutional Court of a province, as noted in the opinion of my brother Justice Yahya.”