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.”