Thursday, February 23, 2023
The observation from the judges came during the hearing of the suo moto notice on the election date for the Punjab and Khyber Pakhtunkhwa assemblies.
Chief Justice of Pakistan (CJP) Umar Ata Bandial had taken suo motu notice day earlier and formed a nine-member bench to hear the case. The bench held its first hearing today.
Apart from Justice Minallah, Justice Shah and CJP Bandial, the bench includes Justice Ijaz Ul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail and Justice Muhammad Ali Mazhar.
During the hearing, Justice Athar Minallah remarked that it is to be seen whether provincial assemblies were dissolved as per the Constitution or not.
While Justice Shah wondered whether the assemblies can be dissolved on someone’s dictation.
"How can the assemblies be dissolved at the directive of an individual if the representatives are elected for five years," he noted.
The judge said that the court will also see if the assemblies' dissolution is constitutionally wrong and if the matter can be resolved through their restoration.
Earlier at the outset of the hearing, the court observed that the authority for giving the date of the elections after the dissolution of the assembly needs clarification.
It stated that the Punjab and Khyber Pakhtunkhwa Assemblies were dissolved on January 14 and 17, respectively, and the elections have to be held in 90 days after the assembly dissolution as per Article 224/2 which provides a timeframe.
The SC remarked that Punjab Governor Baligh ur Rehman says that he has not dissolved the provincial assembly on the chief minister's advice.
"It will be determined through the suo motu case who has the authority to give the election date," the court remarked.
It said that the Election Commission of Pakistan (ECP) had also complained about not getting funds and security for holding the polls.
"Supreme Court won't tolerate the violation of Constitution," CJP Bandial remarked, adding that he was issuing a notice to the attorney general for Pakistan.
He said that the apex court wants to ensure that elections are held as per the Constitution.
The CJP observed that the court had to hear three matters: the timeframe of 90 days for elections under Article 224, president's authority to announce date of polls, and who had the authority to announce the date.
He said that the apex court had the February 10 order of a high court and several other factors in front of it.
At this, Barrister Ali Zafar interjected by saying that they wanted to bring some matters regarding the president on record.
"Violation of Constitution won't be tolerated under any circumstances," CJP Bandial remarked, adding that the proceedings will not be prolonged due to lack of time.
The chief justice then directed the parties to prepare their arguments for the next hearing.
He said that the court intended to hear all the parties.
Meanwhile, Justice Mandokhel said that he had some reservations regarding the suo motu notice in this case.
"We have the petitions of the speakers of two assemblies. This suo motu notice was taken on the note of Justice Ijaz ul Ahsan and Justice Mazahar Naqvi," the judge said, adding that the chief election commissioner was summoned in the case of Lahore police chief Ghulam Muhammad Dogar, who wasn't a party in the case.
At this, CJP Bandial said that some questions have been included by the speakers of both assemblies in their petitions.
"Supreme Court just has to look into the Constitutional point and ensure implementation on it," he said.
During the hearing, the AG requested the court to give time for the preparation.
At that point, CJP Bandial said that the court will stick to a few important matters during tomorrow's hearing and hold a detailed hearing in the next week.
Justice Minallah remarked that a suo motu notice should be taken on the dissolution of provincial assemblies as well.
"The Constitution defines a timeframe related to the election. It was much easier for us to fix the two petitions filed for the election but now the president has given the date," CJP Bandial remarked.
As the proceeding moved forward, the CJP remarked that the court will see if the political parties need to be called.
At this, Islamabad High Court Bar President Shoaib Shaheen maintained that involving political parties would prolong the matter.
"It would be beneficial for all if the decision on the suo motu notice orders holding of the elections," he said
Shaheen added that it was a time-bound case where the issue was to conduct the elections.
During the hearing, Justice Mandokhel also mentioned "audios" in which Supreme Court Bar Association President Abid Zuberi was talking about the judges.
"It doesn't qualify to be a suo motu case in these circumstances," he said.
At this, Justice Minallah said that the court was discussing the Constitutional clause in this case.
The first question would be whether the assembly was dissolved as per the Constitution and the second, whether the assembly had to be viewed under Article 184(3).
Justice Muneeb Akhtar said he believed all political parties should be heard as they constitute a government in a democracy.
The attorney general supported Justice Akhtar's suggestion.
Meanwhile, Advocate Azhar Siddique requested the court to seek the record of the high court.
The president has issued the date for the elections, he said.
At this, CJP Bandial said that the court would only issue the notices today.
"The president fixed April 9 as the date of elections. Punjab governor also raised objection on the announcement of the date," he added.
The CJP then said the court was issuing notices to the AGP and advocate general of all four provinces for February 27, directing them to assist the court in the case.
The court also issued notice to President Arif Alvi, the federal government, ECP, Punjab and KP governments, governors and chief secretaries, and adjourned the hearing till tomorrow, (February 24).
The court remarked that President Alvi and the governors of Punjab and KP will also be heard as they have the exemption under Article 248 but their views are crucial on this matter.
Moreover, CJP Bandial said that Justice Mandokhel's reservations had been noted.
In his dissenting note, Justice Jamal Khan Mandokhail mentioned that he received a file late Wednesday night that CJP Bandial has taken suo motu notice based on an order passed by Justice Ahsan and Justice Naqvi in Dogar's case — and Zuberi is his counsel.
He mentioned that Dogar's petition was pending when the ECP, which was not a party of the petition, and was irrespective of the reply of Chief Election Commissioner Sikandar Sultan Raja.
However, Justice Ahsan and Justice Naqvi "deemed notice", he said, adding, "The matter pertaining to the election has no nexus or connection with the above-mentioned service matter."
It is noteworthy that three audio recordings came out, he said.
In one recording, he further said, Zuberi is reportedly talking to the former chief minister about the pending case of Dogar, "which in my opinion was very serious".
He added that the judges have already expressed their opinion by stating that elections “are required to be held within 90 days” and that there was “imminent danger of violation" of the Constitution.
He, with "greatest respect" for CJP Bandial, said that the chief justice has added to the points mentioned by the two judges and has also expressed his opinion.
"Such definite opinions have decided this matter and done so without taking into consideration Article 10A of the Constitution," he said.
"Then, in these circumstances, it was not appropriate to refer the matter to the honourable chief justice for taking the suo motu notice under Article 184(3) of the Constitution. Suo motu action is not justified."
Ahead of the hearing, the Pakistan Bar Council (PBC) has raised objections over the formation of the bench.
“The Supreme Court must include nine senior most judges in the bench,” the PBC said, adding Justice Qazi Faez Isa and Justice Sardar Tariq Masood should be added in the bench.
The addition of these two judges will give an impression of impartiality on the bench.
“We expect that Justice Sayyed Mazahar Ali Akbar Naqvi would voluntarily recuse himself from the bench,” said the PBC.
The Supreme Court had taken suo motu notice on Wednesday two days after President Dr Arif Alvi fixed April 9 as the date for elections to the provincial assemblies — a move condemned by the government as "unconstitutional and illegal".
Meanwhile, the Election Commission of Pakistan (ECP) also sought input from the attorney general of Pakistan (AGP) and other legal experts — but no official announcement has been made so far.
The issue of delay in elections was referred to the chief justice by a two-member Supreme Court bench comprising Justice Ahsan and Justice Naqvi in the Lahore Capital City Police Officer (CCPO) Ghulam Mehmood Dogar case on February 16.
According to the apex court’s statement, the bench will assess who is eligible to issue the date for polls, the constitutional responsibility of the federation and provinces, and who will fulfil the constitutional responsibility of conducting elections and when.
“It is the government’s responsibility to conduct elections in Punjab and KP according to the Constitution,” the top court’s statement read.
The Supreme Court added that the two provincial assemblies were dissolved on January 14 and 18, respectively.
“Under Article 224 (2), polls should be held within 90 days of the assembly dissolution. The Constitution mandates that polls be held within 90 days.”
The country’s top court also said that requests for the date of elections were also received from the Islamabad High Court bar and speakers of KP and Punjab assemblies.