Islamabad: In an unexpected turn of events, five judges of the Supreme Court resumed hearing suo moto proceedings regarding the delay in announcing a date for elections in Punjab and Khyber Pakhtunkhwa on Monday, as opposed to a nine-member bench.
Four judges, Justice Jamal Khan Mandokhail, Justice Mansoor Ali Shah, Justice Yahsoor Afridi, and Justice Athar Minallah, raised objections to the constitution of the bench and the invocation of the apex court’s suo motu jurisdiction by the chief justice in their additional notes to the Feb. 23 order. The bench has been reconstituted as a five-member bench.
Significant points from Addl. Notes
Justice Jamal Khan Mandokhail
“Late last night (22.2.2023) I received a file that the Hon’ble Chief Justice has taken suo motu notice based on an order passed by the Hon’ble Mr. Justice Ijaz ul Ahsan and the Hon’ble Mr. Justice Mazahar Ali Akbar Naqvi in CPLA No. 3988/2022, which was filed by Ghulam Mehmood Dogar against the order dated 24.11.20 Mr. Abid S. Zuberi is Ghulam Mehmood Dogar’s legal counsel.
“The petition of Ghulam Mehmood Dogar was pending on 16.2.2023 when the learned members of the Bench questioned the Chief Election Commissioner of the Election Commission of Pakistan, who was not a party to the petition, regarding the conduct of elections to the Provincial Assembly of Punjab.
“It is notable that three audio recordings were released. In one recording, Mr. Abid Zuberi reportedly discusses the pending case of Ghulam Mehmood Dogar with the former chief minister, a matter that, in my opinion, was extremely grave.
“Therefore, it was inappropriate in these circumstances to refer the matter to the Chief Justice for suo moto notice pursuant to Article 184(3) of the Constitution. Suo motu actions are unjustified.”
The Honorable Mansoor Ali Shah
“I have chosen not to recuse myself from hearing these cases, despite having reservations regarding the manner in which the original jurisdiction of this Court under Article 184(3) of the Constitution has been invoked suo moto in the present case and the composition of the present Bench.
“The judicial order recommending a suo motu to the chief justice ‘was made in a case that, in my opinion, had no bearing whatsoever on the present matter before us, reflecting to the average reader of the order an unnecessary interest on the part of the two-member Bench.
“Attached to the aforementioned order is the controversy generated by audio leaks involving one of the members of the aforementioned Bench. Despite requests from within and outside the Court, neither this Court nor the constitutional forum of the Supreme Judicial Council have responded institutionally to the allegations.
“In light of the foregoing, and prior to the investigation and resolution of these allegations, the inclusion of the aforementioned member on the Bench in the present matter of “public importance” appears, with the utmost respect, inappropriate. This inclusion becomes more nuanced in the absence of other senior Honorable Judges of this Court.”
Judge Yahya Afridi
“While the jurisdiction of this Court under Article 184(3) of the Constitution is an independent original jurisdiction that is not affected by the pendency of any matter on the same subject matter before any other court or forum, the decision already rendered by the Lahore High Court in Writ Petition No. 6093/2023, which is being challenged in Intra-Court Appeal No. 11096 of 2023, and the peculiarly charged and unyieldingly contested political stances taken by the parties, warrant this This is to avoid any negative reflection on the Court’s eagerness to decide beforehand.
“Therefore, passing any findings or observations 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 would also offend the hierarchical judicial domain of the High Court as envisaged by the Constitution. It would also disrupt the judicial propriety that the Supreme Court deserves in the administration of safe, mature, and respectful justice. Consequently, I deny these three petitions.
“[…] I find that continuing to hear the aforementioned petitions is fruitless. However, I leave it to the Honorable Chief Justice to determine whether or not I will remain on the current bench hearing these petitions.”
Judge Athar Minallah
“I had the honour of reading the order of the Honorable Chief Justice of Pakistan. However, with the utmost respect, it does not appear to be in accordance with the proceedings and the court’s order.
“The questions posed to us cannot be considered in isolation, as we must also consider the constitutionality of the dissolution of the provincial assemblies of Punjab and Khyber Pakhtunkhwa. Questions regarding the legality of the dissolution involve violations of fundamental rights that are significantly more severe.
“During the proceedings, I proposed that the legality of the dissolution of the respective provincial legislatures be examined prior to our consideration of the issue at hand. By assuming and invoking the suo moto jurisdiction granted by Article 184(3), the Honorable Chief Justice, who was presiding over the bench, accepted to include the proposed questions for consideration.
“[…] I was asked to formulate the following specific questions:
(a) Whether a Chief Minister’s authority to recommend the dissolution of the Provincial Assembly is absolute and does not require a valid constitutional justification for its exercise?
(b) Is a Chief Minister required to make such recommendations based on his own independent judgement, or can he do so under the direction of another individual?
(c) If such advice of a chief minister is deemed unconstitutional for some reason, can the provincial assembly that was dissolved as a result be restored?
[…] I believe that the language of Article 184(3) implies that the conferred extraordinary original jurisdiction must be entertained and heard by the Full Court. The violation and interpretation of the Constitution must be heard by the entire court in order to maintain public confidence in the current proceedings and due to the significance of the questions raised for our consideration. In this context, the interpretation of Article 184(3) of the Constitution also requires interpretation.”
