Punjab, KP polls: Coalition parties ask Justice Ahsan, Justice Naqvi to recuse themselves from SC bench

Published February 24, 2023
This combination of photos shows Justice Ijazul Ahsan (L) and Justice Mazahir Naqvi. — Pictures via SC website
This combination of photos shows Justice Ijazul Ahsan (L) and Justice Mazahir Naqvi. — Pictures via SC website

The coalition government on Friday asked Supreme Court’s Justice Ijazul Ahsan and Justice Sayyed Mazahar Ali Akbar Naqvi to recuse themselves from a larger Supreme Court bench that is hearing suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa.

The request was presented in a joint note by the PPP, PML-N and JUI-F.

A nine-member bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and also comprising Justice Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Naqvi, Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar and Justice Athar Minallah, heard the case.

Ahead of today’s hearing, Barrister Ali Zafar, JUI’s counsel Kamran Murtaza and PPP’s lawyer Farooq H. Naik appeared before the court.

Likewise, PML-N’s lawyer Mansoor Awan, and the Punjab governor’s counsel Mustafa Ramde were in attendance.

Attorney General Shahzad Atta Elahi and Additional Attorney General Aamir Rehman as well as other legal fraternity representatives and political leaders also attended the hearing.

Coalition objects to SC bench

As the proceedings commenced today, 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 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 pointed out.

‘Constitution has knocked on the court’s door’

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 Feb 27, 11:30am.

Divide in SC bench

In the previous hearing, the apex court had issued notices to all the stakeholders and asked them to come up with “skeleton arguments”.

Attorney General for Pakistan (AGP) Shehzad Ata Elahi, Election Commission of Pakistan (ECP), government through the cabinet secretary, chief secretaries of Punjab and Khyber Pakhtunkhwa (KP), Pakistan Bar Council (PBC), the Supreme Court Bar Association (SCBA), all the advocate generals of the provinces, and the Pakistan Democratic Movement (PDM) were also issued notices.

During the proceedings, a divide was also visible in the larger SC bench as Justice Mandokhail objected to the suo motu notice and termed it “not justified”.

“In these circumstances, it was not appropriate to refer the matter to Chief Justice of Pakistan (CJP) for taking suo motu under Article 184(3) of the Constitution,” Justice Mandokhail had observed in a note.

In his objection, Justice Mandokhail recalled how Justice Ijazul Ahsan and Justice Mazhar Ali Akbar Naqvi who were hearing a service matter of CCPO Lahore Ghulam Mehmood Dogar, called Chief Election Commissioner (CEC), who was not a party to Dogar’s petition and asked him about elections in Punjab.

Irrespective of the CEC reply, both judges deemed it appropriate to refer the matter to the CJP to take the suo motu notice. The matter pertaining to elections has no nexus or connection with the service matter, the judge had said.

In his note, Justice Mandokhail had also mentioned three audio recordings. In one of the recordings, Dogar’s lawyer Abid Zuberi was reportedly heard talking to the former Punjab chief minister about the case of Dogar, which Justice Mandokhail had observed was very serious. Besides these two judges have already expressed their opinion by stating that elections were required to be held within 90 days and that there was an imminent danger of violating the Constitution.

“With greatest respect, the CJP has added to the points mentioned by the two judges and has also expressed his opinion,” Justice Mandokhail had stated, adding such definite opinions have decided this matter and done so without taking into consideration Article 10A of the Constitution which deals with a fair trial.

“Thus in these circumstances, it was not appropriate to refer the matter to CJP for taking suo motu notice,” Justice Mandokhail had observed.

However, the CJP had observed that the reservations expressed by Justice Mandokhail could be disregarded since the petitions by former speakers of the provincial assemblies were also before us and appended the same in the court order.

Suo motu notice

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:

  1. 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?
  2. How and when is this constitutional responsibility to be discharged?
  3. 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.

Punjab, KP election limbo

The Punjab and KP assemblies — where the PTI had governments — were dissolved on January 14 and January 18, respectively, in an attempt to pave the way for snap polls.

On Jan 24, the ECP wrote letters to the principal secretaries of Punjab and KP governors, suggesting elections in Punjab between April 9 and 13, and in KP between April 15 and 17.

At the same time, the PTI had on Jan 27 approached the LHC seeking orders for the Punjab governor to immediately announce a date for an election in the province following which the court had directed the ECP to immediately announce the date for elections after consultation with the governor.

Meanwhile, President Arif Alvi had also urged the ECP on Feb 8 to “immediately announce” the date for polls in KP and Punjab and put an end to “dangerous speculative propaganda” on both the provincial assembly and general elections.

However, so far, the governors of the two provinces have refra­ined from providing any date for the polls on several pretexts.

Last week, President Alvi had invited Chief Election Commissioner (CEC) Sikandar Sultan Raja for an urgent meeting regarding consultations on election dates but the ECP told him he had no role in the announcement of dates for general elections to provincial assemblies and the commission was aware of its constitutional obligation in this regard.

Subsequently, the president on Monday unilaterally announced April 9 as the date for holding general elections for the Punjab and KP assemblies.

The move drew sharp criticism from his political opponents, who accused him of acting like a PTI worker while the ECP said it would announce the poll schedule only after the “competent authority” fixes the date.

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