Four judges of the Supreme Court of Pakistan on Monday dissociated themselves from the nine-member bench hearing a suo motu case related to delay in the Punjab and Khyber Pakhtunkhwa elections. 

A nine-member bench, headed by Chief Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Mazahar Ali Akbar Naqvi, Justice Syed Mansoor Ali Shah, Justice Jamal Khan Mandokhail, Justice Yahya Afridi, Justice Athar Minallah and Justice Muhammad Ali Mazhar, was set to take up the case but the hearing could not be resumed due to divide in the bench. 

Justice Athar Minallah, Justice Yahya Afridi, Justice Ijazul Ahsan and Justice Mazahar Ali Naqvi have recused from hearing the case and asked the chief justice to constitue a new bench for the case. 

In the previous hearing, the PML-N, the PPP, the JUI-F and other parties raised objection against two judges of the nine-member bench of the apex court, saying a full bench should be made to hear the case.The ruling coaltition has also submitted an application seeking formation of the full bench case. 

Details of Friday’s Hearing 

Barrister Ali Zafar represented the Punjab and KP speakers. The JUI-F is represented by Kamran Murtaza, PPP by Farooq H Naek, Nayer Bukhar and Farhatullah Babar, PML-N by Mansoor Awan, the Punjab governor by Advocate Mustafa Ramday. Supreme Court Bar Association President Abid Zuberi, Islamabad High Court Bar President Shoaib Shaheen and Attorney General of Pakistan Shehzad Ata Elahi and Additional Attorney General Amir Rehman attended Friday’s hearing.

At the outset of the hearing, Mr Naek had raised objections over inclusion of Justice Ijazul Ahsan and Justice Mazahar Naqvi. He said the suo motu notice was taken by the chief justice on the note of both judges in Ghulam Mahmood Dogar’s service case, therefore, they should separate themselves from the bench. The PPP lawyer also sought formation of the larger bench to hear the poll date case. 

Meanwhile, the PML-N, the JUI-F and the PPP had also submitted a joint statement in the court, raising objection to the presence of two judges. They said both judges should not hear the case. 

The CJP remarked it was his prerogative to take a suo motu notice. “Today is meant to mark the attendance of all stakeholders,” he said, adding that representatives of all four provinces were present in court. Later, the chief justice adjourned the hearing till Monday.

On Thursday in last week, the bench issued notices to Attorney General for Pakistan (AGP) Shehzad Ata Elahi, Election Commission of Pakistan (ECP), government through the cabinet secretary, chief secretaries of Punjab and KP, Pakistan Bar Council (PBC), the Supreme Court Bar Association (SCBA), all the advocate generals of the provinces, and the Pakistan Democratic Movement (PDM), directing them to submit their arguments on Friday (today).

As no notices can be issued to President Dr Arif Alvi and the two governors under Article 248 that provides them immunity, the apex court has ordered principal secretaries to contact them to get the point of view on the matter.

Bench Appears Divided on Suo Motu in Thursday’s Hearing

During Thursday’s hearing, Justice Mandokhel raised objection to the suo motu notice and called it “unjustified”. He said the Punjab and KP speakers had filed their petitions before the apex court’s notice. He said the notice was taken on the note of Justice Naqvi and Justice Ahsan who had given it during the hearing of the case pertaining to transfer of Lahore Capital City Police Officer Ghulam Mahmood Dogar. 

He highlighted that the chief election commissioner was summoned by both judges in the case despite the fact that he was not a party in it.

Irrespective of the CEC reply, Justice Ahsan and Justice Naqvi referred the matter to the CJP to take the suo motu notice. He observed there was no connection between the election and Lahore CCPO’s case. In these circumstances, it was not justified to send the matter to the chief justice to take the suo motu notice under Article 184 (3).

Two other judges – Justice Athar Minallah and Justice Syed Mansoor Ali Shah – highlighted other aspects of the case while raising questions about motivation behind dissolution of the assemblies. 

CJP Bandial, on the day one, said the bench would hear three related cases and determine who was supposed to give the elections’ dates. He said it was an important case and should be dealt with in line with the Constitution. The apex court, he said, would not tolerate violation of the constitution. He said the schedule of next week had been put off to give due weightage to this case. He said the judges would listen to the viewpoint of all concerned and salient features would be discussed on Friday.

He said multiple factors led the apex court to take the suo motu notice, adding that the 90-day period for conducting provincial elections was running out. He said the matter was also pending with the Lahore High Court, adding that the high court could be bypassed in case of emergency. The CJP remarked, “We want implementation of the Constitution dictates”.

At that point, Barrister Ali Zafar said he wanted to bring some things related to the president’s announcement about the date for elections on the record. The CJP replied Mr Alvi announced the date for elections in the provinces under Section 57 (notification of election programme) of the Elections Act 2017. He said multiple opinions had surfaced about this part of the act and it needed to be interpreted.

Mr Zafar requested the court to take up a relevant petition filed by him. However, CJP Bandial remarked that the court was looking into three different matters. “We have to determine who has the authority to give date for elections after the dissolution of the assemblies”.

At one point during the hearing, the attorney general of Pakistan sought time from the court for preparation in the case. He said it would be difficult to come up with preparation during Friday’s hearing if so many notices were issued to people. In reply, the top judge said the court would discuss only essential things, adding that the detailed hearing of the case would be held on Monday next week.

He said the court wanted to wrap up the case as soon as possible and the time given by the Constitution for the election was running out. Saying the court would not tolerate violation of the Constitution, the CJP remarked the time for elections could only be extended if there was a serious situation. He said the situation had changed after the president announced a date for the elections. The top court would see the constitutional points in the case and then implement it, he added.