23 February 2023
By Rehan Piracha
Hearing a suo motu over the issue of election dates of the Punjab and Khyber Pakhtunkhwa assemblies, the Supreme Court on Thursday issued notices to President Arif Alvi, both provincial governors, the Election Commission, and advocates general of the four provinces for February 27 as Pakistan Bar Council (PBC) called for a reconstitution of the larger bench with the inclusion of two senior-most justices Qazi Faez Isa and Tariq Masood.
On February 22, the Chief Justice of Pakistan Umar Ata Bandial invoked the suo motu jurisdiction of the Court under Article 184(3) of the Constitution and constituted a nine-member larger bench to consider the constitutional crisis arising after President Arif Alvi unilaterally announced dates for elections of the provincial assemblies of Punjab and KP.
The larger bench, headed by CJP Bandial, comprises Justice Ijaz ul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah.
PBC calls for reconstitution of the larger bench
Ahead of the larger bench’s hearing on Thursday, PBC Executive Council Chairman Hassan Raza Pasha and Vice-Chairman Haroonur Rashid said the CJP should not exclude Justice Qazi Faez Isa and Justice Sardar Tariq Masood from the larger.
“The Honorable Chief Justice of Pakistan should constitute Bench comprises on nine senior judges of the Supreme Court without exclusion of Mr Justice Qazi Faez and Mr. Justice Sardar Tariq Masood to make its image as impartial and neutral, so that the public and lawyers community may not question upon the Bench for hearing of the important matter in respect a determination of constitutional responsibility and authority to announce date of election for Punjab and Khyber Pakhtunkhwa Provincial Assemblies,” the PBC leadership said in a statement released on Thursday.
The PBC also called on Justice Mazahar Ali Akbar Naqvi to voluntarily recuse himself from the larger bench.
Speaking to Voicepk.net, Hassan Raza Pasha said the council wanted to protect the judiciary’s image, referring to his statement about inclusion of the senior most judges in the larger bench. “We have called on the CJP to include only the nine senior-most judges so that any objections raised are negated,” he added.
Questions for adjudication
According to the CJP’s order, the larger bench to consider three questions relating to holding of elections to provincial assemblies. Firstly, the bench is to determine who has the constitutional responsibility and authority for appointing the date for provincial assembly’s election upon its dissolution in the various situations under the Constitution.
Secondly, the bench would consider how and when the constitutional responsibility of holding election was to be discharged.
Lastly, the apex court is to determine the constitutional responsibilities and duties of the Federation and the Province with regard to the holding of the general election.
Hearing of the case
At the onset of the hearing, CJP Bandial said the Supreme Court would not tolerate the violation of the Constitution and it wanted the elections to be in accordance with the Constitution.
He said that who had the authority to give the date of the elections after the dissolution of the assemblies needed clarification.
The Punjab and KP assemblies were dissolved on January 14 and 17 and Article 224 of the Consitution gives a time frame for holding elections, he added.
The Chief Justice said that the court has to consider three questions relating to the elections of provincial assemblies. The President has announced the date of the election under Section 57 of the Election Act 2017 while the election has to be held in 90 days under Article 224 of the Constitution, he added.
The court said that who had the authority to give the date of the election after the dissolution of the provincial assembly needed clarification.
CJ Bandial said the court wanted to hear all parties but it would not prolong the hearing due to a lack of time, adding it would properly begin hearing of case from Monday (February 27).
Reservation of bench members
During the hearing, Justice Jamal Khan Mandokhail said he had some reservations regarding the suo motu hearing. “The suo motu notice was taken on the note of Justice Naqvi and Justice Ahsan,” he said, referring to SC’s proceedings regarding the transfer of Lahore CCPO Ghulam Mehmood Dogar.
“In that case, the chief election commissioner, who was not a respondent, was summoned,” Justice Mandokhail noted. Similarly, Justice Athar Manullah said that the court should also take suo motu notice of the circumstances in which both provincial assemblies were dissolved.
CJP Bandial said a suo motu notice was taken due to a number of factors. “Prolonged proceedings are underway in the high court but time is passing by,” he said.
The CJP observed that the Constitution decides the time for elections, which he said was ending. “The high court’s forum can be bypassed if there is an emergency. It was easier for us to fix two petitions — filed in the SC by the provincial assembly speakers — for hearing.”
The larger bench issued notices to the President, ECP, chief secretaries of the governors of Punjab and KP, the advocate generals of all the provinces, the president of the Supreme Court Bar Council and the Islamabad Bar Council and instructed them to appear before the bench on February 27. The Pakistan Democratic Party (PDM) and PPP were also issued notices to assist the court.