Punjab, KP polls: Coalition parties ask Justice Ijazul Ahsan, Justice Sayyed Mazahar Ali Akbar Naqvi to recuse themselves from SC bench
ISLAMABAD, Feb 24 (SABAH): The Pakistan Muslim League-Nawaz (PML-N), the Pakistan People’s Party (PPP) and Jamiat Ulema-e-Islam-Fazl (JUI-F) and other parties raised objection to the nine-member bench of the Supreme Court of Pakistan hearing the suo motu case regarding delay in Punjab and Khyber Pakhtunkhwa elections, saying a full bench should be made to hear the case.
A nine-member bench, headed by Chief Justice of Pakistan Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Khan Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah is hearing the case.
Senator Barrister Syed Ali Zafar represented the Punjab and KP speakers, the JUI-F is represented by Senator Kamran Murtaza Advocate, PPP by Senator Farooq Hamid Naek, Syed Nayyar Hussain Bukhari and Farhatullah Babar, PML-N by Mansoor Usman Awan advocate, the Punjab governor by Advocate Mustafa Ramday, Supreme Court Bar Association President Abid Shahid Zuberi, Islamabad High Court Bar President Shoaib Shaheen and Attorney General of Pakistan Shehzad Atta Elahi and Additional Attorney General Chaudhry Amir Rehman also attended the hearing.
At the outset of the hearing, Farooq Naek raised objections over inclusion of Justice Ijazul Ahsan and Justice Mazahar Naqvi in the bench. 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 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.
As the proceedings commenced on Friday, following the first hearing in which a divide was visible in the larger SC bench, PML-N’s counsel pointed out that he had not yet received a copy of the court order.
PPP’s lawyer Farooq H. Naek said reiterated the same and urged the court to issue notices to all parties concerned.
“Today, we will mark everyone here present and hear everyone on Monday,” the CJP said here, noting that the representatives of all provinces were present in the courtroom.
At that, the PPP counsel said: “With great respect, I am objecting to the inclusion of two judges in the bench. The [party] leaders have decided to object to [their inclusion].”
Naek then went on to name Justice Mazahar Ali Naqvi and Justice Ijazul Ahsan. He also read out a joint statement of the PPP, the JUI-F and the PML-N.
“After Justice Jamal Mandokhail’s note, Justice Ahsan and Justice Naqvi must recuse themselves from the bench,” he urged the court, adding that both the judges should not hear any case involving the PML-N and JUI-F.
Justice Mandokhail on Thursday had objected to the suo motu notice and termed it “not justified”.
“All three political parties respectfully request that the two-member bench’s order of suo motu notice is available. Hence, both judges should not sit on the bench in the context of the provision of justice and fair trial,” Naek told the court.
Here, Justice Athar Minallah said that the matter, in his view, pertained to Article 184(3) of the Constitution — a provision that empowers the top court to intervene in matters involved in the enforcement of fundamental rights — and asked why it should not be heard in a full court.
Naek replied that he did not want to go into the details, adding that he also believed that the case should be heard by a full-court bench.
At that, CJP Bandial said that the court will first discuss the admissibility of the request.
He also asked if the parties had a copy of the note seeking the recusal of the judges. “This note is a part of a Supreme Court judgment which hasn’t been signed yet,” the top judge noted.
For his part, Advocate Azhar Siddique — the counsel of Awami Muslim League chief Sheikh Rashid Ahmed — demanded that the court should take notice of the language being used against the judiciary.
Referring to a PML-N rally held on Friday, he said that “derogatory remarks” were hurled at the judiciary in that public gathering.
Justice Mandokhail replied that political matters must be settled in the Parliament. “Go to your parties … why should the court hear this matter?”
At that, Naek said that he would seek direction from his party on the matter. He also requested the court to first hear the government’s objection on the bench.
Justice Bandial said that in normal circumstances, citizens knocked on the door of the court. “But today, the Constitution of Pakistan has knocked on our doorstep.”
Subsequently, the court observed that it will decide on Monday whether to form a full-court bench to hear the case. “The court will also hear the objection raised against the two judges on Monday,” CJP Bandial remarked and adjourned the hearing till Monday, 11:30 AM.
On Wednesday night, the top judge took suo motu notice of the delay in holding polls in Punjab and Khyber Pakhtunkhwa, saying that there appeared to be a “lack of clarity” on the matter.
The suo motu notice was taken by the top judge after President Dr Arif Alvi earlier this week unilaterally announced April 9 as the election date in both provinces after his invitation for consultations on the matter was turned down by the Election Commission of Pakistan (ECP).
In the notice, CJP Bandial said that the SC bench would consider the following 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?
What are the constitutional responsibilities and duties of the federation and the province with regard to the holding of the general election?
In his order, the CJP observed that there was, to put it shortly, a lack of clarity on a matter of high constitutional importance.
The issues raised require immediate consideration and resolution by the Supreme Court. The decision was taken after a note was presented to the CJP against the backdrop of a Feb 16 order by a two-judge bench asking the chief justice to invoke a suo motu initiative in this regard.
“Several provisions of the Constitution need to be considered, as also the relevant sections of the Elections Act 2017. In particular, the issues involve, prima facie, a consideration of Article 17 of the Constitution and enforcement of the fundamental right of political parties and the citizens who form the electorates in Punjab and Khyber Pakhtunkhwa to exercise their right to elect representatives of their choice to constitute fresh assemblies and the provincial cabinets,” the SC order said.
“This is necessary for governments in the two provinces to be carried on in accordance with the Constitution,” observed the CJP, adding that these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement.
“There is a material development in the last few days,” the CJP noted, adding that it appeared that subsequent to certain correspondence initiated by President Arif Alvi with the Election Commission of Pakistan, the former had taken the position that it was he who had the authority and responsibility for appointing a date for the general elections, in terms as provided in Section 57(1) of the Elections Act.
The order said: “By an order made on Feb 20, the President had appointed April 9, 2023, to be the date for the holding of the general elections in Punjab as well as KP and had called upon ECP to fulfil its constitutional and statutory obligations in this regard.
More than one month has now elapsed since the dissolution of the provincial assemblies and it seems prima facie that even the matter of appointing the date of general elections which was a first step towards the holding of the elections, has still not been resolved, the judge remarked.
“Constitutional authorities appear to hold divergent and perhaps even conflicting, views on the issue, and thus several federal ministers appear to have contested the authority asserted by the president. Since ministers act under the constitutional rule of collective responsibility, it appears, prima facie, that this is the view taken by the federal cabinet as a whole.
“It is also to be noted that statements attributed to ECP have appeared in the public record to the effect that it was not being provided the requisite assistance and support, in particular by the provision of necessary funds, personnel and security, as would enable it to hold the general elections in accordance with the Constitution.”
The CJP observed that in the cases of Punjab and KP, the then chief ministers tendered advice to their respective governors under Article 112(1) of the Constitution to dissolve the assembly.