Justice Mandokel objects to suo motu notice: Two SC judges question dissolution of assemblies

ISLAMABAD: The Supreme Court Thursday issued notices to the federal government, attorney-general, election commission, advocate-generals of the four provinces, and advocate-general of the Islamabad Capital Territory on a suo motu notice taken on the delay of elections in Punjab and Khyber Pakhtunkhwa.

The case was heard by a nine-member larger bench led by Chief Justice of Pakistan Justice Umer Ata Bandial. Justice Ijazul Ahsen, Justice Muneeb Akhtar, Justice Mazhar Ali Naqvi, Justice Muhammad Ali Mazhar, Justice Yahya Khan Afridi, Justice Mansoor Ali Shah, Justice Athar Minallah, and Justice Jamal Khan Mandokhel were also on the bench.

Justice Jamal Khan Mandokel expressed reservations about invoking the suo motu jurisdiction in light of the delay in announcing the election dates for the Punjab and Khyber-Pakhtunkhwa assemblies, saying that it was not “justified.”

While the other two judges on the bench, Justices Syed Mansoor Ali Shah and Athar Minallah, raised questions about the dissolution of the assemblies. According to Justice Athar Minallah, the people of this country elect their representatives to parliament for a five-year term.

“It remains to be seen whether the provincial assemblies of Punjab and Khyber Pakhtunkhwa were dissolved by the Constitution. As a result, if they violate the Constitution, it becomes a constitutional issue.”

Similarly, about the dissolution of provincial assemblies, Justice Syed Mansoor Ali Shah stated that the court should investigate whether the chief minister of a province can act in the direction of a political party leader.

The judge questioned how assemblies could be dissolved on an individual’s directive, adding that the court should also investigate whether assemblies were dissolved in violation of the Constitution and why they couldn’t be restored by resolving the issue.

“The reservations expressed by Justice Jamal Khan Mandokhel and the questions raised by Justices Syed Mansoor Ali Shah and Athar Minallah will be accommodated in the court’s order,” Chief Justice Umer Ata Bandial said while dictating the order.

The court also issued notices for Friday to members of the Pakistan Democratic Movement (PDM), the governments of Punjab, and Khyber Pakhtunkhwa through their respective chief secretaries, the Pakistan Bar Council, and the Supreme Court Bar Association.

The court did not issue a notice to the president or the governors of Punjab and Khyber Pakhtunkhwa because they are protected by Article 248 of the Constitution.

The court stated in its order that if the president and governors so desired, they could also file their case with the court.

In the order, the chief justice also stated that two petitions were filed before the court, one by the Islamabad High Court Bar Association and the other by the speakers of the provincial assemblies of Punjab and Khyber Pakhtunkhwa, requesting that this court direct the constitutional authorities concerned to hold elections in the two provinces, arguing that elections are required under Article 224 of the Constitution within 90 days after the dissolution of the assemblies.

The court noted that, under Section 57(1) of the Election Act 2017, the president had recently announced the dates of April 9 for holding elections to both provincial assemblies.

The court stated in its order that proceedings in the matter are still pending with the Lahore and Peshawar high courts and that the learned Lahore High Court has directed the Election Commission of Pakistan to announce the date for the Punjab election after consulting the governor.

The court noted that both the election commission and the Punjab governor had challenged the order through an intra-court appeal, that the matter was scheduled before the LHC for February 21, 2023, and that notices were issued for February 27 after the matter was heard.

Similarly, the court noted in its order that the Peshawar High Court proceedings were scheduled for February 28, 2023, when the ECP filed its report.

“Despite the lapse of six weeks following the dissolution of assemblies, the matter of fixing dates for elections to both provincial assemblies remains subordinate,” the court stated in its order, adding that Article 224 of the Constitution requires elections to provincial assemblies to be held within 90 days of the dissolution.

In the circumstances, a bench of the Supreme Court referred the case to the office for a suo motu notice, which was issued on February 22.

Earlier during the hearing, the chief justice stated: “It will be determined who has the authority to give the election date through the instant suo motu proceedings.”

The chief justice made it clear that the court will not tolerate constitutional violations; thus, the court is dealing with this critical issue on an emergency basis.

“Notice is being issued to the attorney-general to assist the court on this glaring issue,” the CJP said, adding that the court is only interested in upholding the Constitution and ensuring constitutional obligations by holding elections by constitutional requirements.

Barrister Ali Zafar, counsel for two provincial speakers, stated that he wishes to raise some issues concerning the president.

The chief justice stated that constitutional violations will not be tolerated under any circumstances and stated that the proceedings will not be prolonged due to a lack of time.

“We have some difficult schedules in the coming days,” the CJP noted, “which is why we want to conclude these proceedings as soon as possible because they are important constitutional matters.” He then asked the parties to prepare their arguments for the next hearing.

During the proceedings, Justice Jamal Khan Mandokhel expressed reservations about invoking suo motu jurisdiction over the matter.

The court had two petitions on the matter, according to the judge, including petitions from the speakers of two assemblies. He stated that this suo motu notice was issued on the recommendation of Justice Ijazul Ahsan and Justice Mazahar Naqvi, adding that the chief election commissioner was summoned in the case of Lahore police chief Ghulam Muhammad Dogar, who wasn’t a party to the case.

Justice Mandokhail also stated that three audio recordings had surfaced, one of which revealed that Abid Zuberi was allegedly discussing Ghulam Mehmood Dogar.

“This is a very serious issue,” the judge noted, adding that in these circumstances, it does not qualify as a suo motu case.

Justice Athar Minallah stated that the court is currently discussing the constitutional clauses in the instant case, adding that they will investigate whether the assemblies were dissolved by the Constitution and whether the court should investigate under Article 184(3) of the Constitution. The chief justice stated that the speakers of both assemblies had included some questions in their petitions.

“We are concerned about the constitutional requirement regarding election holding and want to ensure its implementation,” the CJP stated.

Meanwhile, Attorney-General Shahzad Ata Elahi requested that the court allow him time to prepare before assisting the court.

The chief justice informed AG that the court would not hold a detailed hearing on Friday (today), but instead would focus on some critical issues, with a detailed hearing scheduled for next week.

According to the chief justice, the court will also consider whether other stakeholders, including political parties, should be invited to provide input on this critical matter.

At this point, Islamabad High Court Bar Association president and petitioner Shoiab Shaheen stated that if political parties were involved, the case could be prolonged.

He contended that it was a time-bound case involving the constitutional obligation to ensure elections by the Constitution’s requirements.

At this point, another member of the bench, Justice Muneeb Akhtar, stated that all political parties should be heard because they form a government in a democracy.

At the start of the hearing, Advocate Azhar Siddique appeared via video link from the Lahore Registry to seek the high court’s record. The chief justice stated that the court was only issuing notices today and that the matter would be adjourned for Friday after the notices were issued.