Justice Jamal Khan Mandokhail says notice taken on order of Justice Ijaz, Justice Naqvi n Can Supreme Court restore Punjab, KP assemblies, asks Justice Minallah n Raises question whether assemblies dissolved as per the Constitution n Chief Justice assures judges their statements will be included in the order n Top court issues notices to President, Governors, AGP.

 

ISLAMABAD    -    The Supreme Court of Paki­stan Thursday issued notices to the Attorney General for Paki­stan (AGP), Advocate Generals of all provinces and others in suo motu notice case related to de­lay in announcement of the date for holding elections of the dis­solved assemblies of the Punjab and Khyber Pakhtunkhwa. 

A nine-member bench of the apex court headed by Chief Jus­tice Umar Ata Bandial conducted hearing of the suo motu and the petitions of the Islamabad High Court Bar Association and the Speakers of the Punjab and KP assemblies.

During the hearing, the court noted that six weeks have elapsed since the dissolution of the assemblies, but the matter regarding the authority to ap­point the dates for holding of elections in the Punjab and the KP is subject to the interpreta­tion. It further said that in terms of Article 224(2) the Election Commis­sion is bound to hold elections within 90 days. The bench also issued notices to the Vice-Chairman Pakistan Bar Council, Elec­tion Commission of Pakistan, and to the President and the Governors of the Punjab and KP through their principal secretaries, if they desire to share their opinion on the matter. The court also issued notices to the federation through the Secretary Cabinet Division, Chief Secretaries of the Punjab and the KP, and the political parties. 

The court has also issued to the Presi­dent Supreme Court Bar Associations, but on the objection that AGP is representing a party, the chief justice did not issue notice to President SCBA.

The Chief Justice on February 22 took suo motu to consider the questions; Who has the constitutional responsibility and authority for appointing the date for the holding of a general election to a Provincial Assembly, upon its dissolution in the vari­ous situations envisaged by and under the Constitution? How and when is this consti­tutional responsibility to be discharged?

During the proceeding, Justice Athar Mi­nallah raised the question, whether the Assemblies were dissolved in accordance with the constitution as the Court in ex­ercise of Article 184(3) considering the questions. 

He said that the representatives are elected for five years and is this the right of a political leader or the political party re­garding dissolution of the assemblies? Jus­tice Syed Mansoor Ali Shah said the Court would also need to see why the provincial assemblies were dissolved if there was no solid reason. He added, “Can we (Court) restore the assemblies and if the assem­blies are restored then the matter would be resolved.” Justice Athar questioned whether the chief minister can act on the dictate of the political leader to dissolve the assembly.

Justice Jamal Khan Mandokhail said while going through the suo motu order that he wanted to recuse. He said the suo motu was taken by the chief justice on the order of a two-member bench compris­ing Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi. The bench was hearing the appeal of City Chief Police Of­ficer (CCPO), Lahore, Ghulam Mahmood Dogar, adding that despite the fact the elec­tions in Punjab and KP was not an issue before the bench but it referred the matter to the CJP to invoke the suo motu jurisdic­tion under Article 184(3). He said, “It is not appropriate to refer the matter to the chief justice to take suo motu on an issue which was not before the bench.” He further said some audio were leaked.

The Chief Justice assured the brother judges that their statements would be in­cluded in the order. The apex court noted that several petitions were filed in the La­hore High Court, inter alia, seeking com­pliance of the constitutional obligation im­posed by Article 224(2). A single bench of LHC on 10.02.2023 in Chambers conclud­ed that the authority lay with the Election Commission of Pakistan and called upon the same “to immediately announce the date of election of the Provincial Assem­bly of Punjab with the Notification speci­fying reasons, after consultation with the Governor of Punjab, being the constitu­tional Head of the Province, to ensure that the elections are held not later than nine­ty days as per the mandate of the Consti­tution.”

Reportedly both the Governor and the Election Commission have filed Intra Court Appeals which are pending before a Division Bench of the High Court. It seems to be the Governor’s case that since he did not act on the advice tendered by the then Chief Minister and made no order dissolv­ing the Assembly, he does not have the re­sponsibility or authority to appoint the date for the general election.

The Election Commission has, it appears, also taken the position that under the Con­stitution it has no authority to appoint the date for a general election, though it has categorically stated that it is fully com­mitted to conducting the said election in accordance with the Constitution. At the same time, the Governor of KPK Province has also not appointed a date for the hold­ing of the general election and a petition in this regard is pending before the Pesha­war High Court. The LHC has fixed 27-02-23 and the PHC 28-02-23 for hearing.

Later, the bench deferred the hearing till Friday (today) for further proceed­ings. Meanwhile, Justice Jamal Khan Man­dokhail expressed serious reservations over the invoking of suo motu jurisdiction regarding the delay in the election date an­nouncements for Punjab and Khyber-Pa­khtunkhwa Assemblies, saying that it was not ‘justified’.

Justice Mandokhail read the written note wherein he stated that late last night he re­ceived a file that the Chief Justice of Paki­stan (CJP) Umar Ata Bandial took suo motu notice on the basis of an order passed by Justice Ijaz ul Ahsan and Justice Mazahar Ali Akbar Naqvi, which was filed by Ghu­lam Mehmood Dogar against the order dated November 24, 2022, passed by the Federal Service Tribunal (FST) in respect of his transfer.

The note maintained that “irrespective of the reply of the CEC, Justices Ahsan and Naqvi deemed it appropriate to refer the matter to the CJP to take suo motu notice.” It further said that the matter pertaining to the election had “no nexus or connection with the abovementioned service mat­ter to the former chief minister about the pending case.