In an unexpected development, five judges of the Supreme Court — instead of a nine-member bench — on Monday resumed hearing the suo motu proceedings regarding the delay in the announcement of a date for elections in Punjab and Khyber Pakhtunkhwa.

The bench has been reconstituted to a five-member bench after four judges — Justice Jamal Khan Mandokhail, Justice Mansoor Ali Shah, Justice Yahya Afridi and Justice Athar Minallah — in their additional notes to the Feb 23 order raised objections on the constitution of the bench as well as the invocation of the apex court’s suo motu jurisdiction by the chief justice.

Here, Dawn.com looks at the key points from the additional 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 on the basis of an order passed by Hon’ble Mr. Justice Ijaz ul Ahsan and Hon’ble Mr. Justice Mazahar Ali Akbar Naqvi in CPLA No. 3988/2022, which was filed by Ghulam Mehmood Dogar against order dated 24.11.2022 passed by the Federal Service Tribunal (“FST”) in respect of his transfer. Learned Mr. Abid S. Zuberi is the counsel of Ghulam Mehmood Dogar.

“The petition of Ghulam Mehmood Dogar was pending when on 16.2.2023 the learned members of the Bench called the Chief Election Commissioner of the Election Commission of Pakistan, who was not a party to the petition, and was asked about the holding of elections to the Provincial Assembly of Punjab.

“It is noteworthy that three audio recordings came out. In one recording learned Mr. Abid Zuberi is reportedly talking to ex Chief Minister about the pending case of Ghulam Mehmood Dogar, which in my opinion was very serious.

“Thus in these circumstances it was not appropriate to refer the matter to Hon’ble Chief Justice for taking suo motu notice under Article 184(3) of the Constitution. Suo motu action is not justified.”

Justice Mansoor Ali Shah

“I have opted not to recuse myself from hearing these cases, despite having reservations on how the original jurisdiction of this Court under Article 184(3) of the Constitution has been invoked suo motu in the present case as well as on the constitution of the present Bench.

“The judicial order recommending a suo motu to the chief justice ‘was made in a case which, in my view, had no concern whatsoever with the present matter before us, reflecting to an ordinary reader of the order an unnecessary interest of the two-member Bench in the matter’.

“Attached to the said order is the controversy in the public domain, generated by the audio leaks relating to One of the members of the said Bench. Inspite of the requests from within the Court and outside the Court, there has been no institutional response to the allegations either by this Court or by the constitutional forum of the Supreme Judicial Council.

“In this background and before these allegations could be probed into and put torest, inclusion of the said member on the Bench in the present matter of “public importance” appears, most respectfully, inappropriate. This inclusion becomes more nuanced when other senior Hon’ble Judges of this Court are not included on the Bench.”

Justice 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, pending challenge in Intra-Court Appeal No. 11096 of 2023, and the peculiarly charged and unflinching contested political stances taken by the parties, warrant this Court to show judicial restraint to bolster the principle of propriety. This is to avoid any adverse reflection on this Court’s judicial pre-emptive eagerness to decide.

“Therefore, passing any finding or remarks 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, more importantly, offend the hierarchical judicial domain of the High Court as envisaged under the Constitution. It would also disturb the judicial propriety that the High Court deserves in the safe, mature, and respectful administration of justice. Accordingly, I dismiss these three petitions.

“[…] I find that my continuing to to hear the said petitions is of no avail. However, I leave it to the Worthy Chief Justice to decide my retention in the present bench hearing the said petitions.”

Justice Athar Minallah

“I also had the privilege of going through the order of the Hon’ble Chief Justice of Pakistan. However, with utmost respect, it does not appear to be consistent with the proceedings and the order dictated in the open Court.

“The questions raised before us cannot be considered in isolation because questions regarding the constitutional legality of the dissolution of the provincial assemblies of Punjab and Khyber Pakhtunkhwa cannot be ignored. The questions regarding the legality of the dissolution involve far more serious violations of fundamental rights.

“During the proceedings, I had proposed that the question of legality of the dissolution of the respective provincial legislatures must also be examined before considering the matter placed before us. The Honb’ble Chief Justice, who was heading the bench, had by assuming and invoking the suo motu jurisdiction conferred under Article 184(3), accepted to include the proposed questions for consideration.

“[…] I was asked to formulate the precise questions which are as follows:

(a) Whether the power of a Chief Minister to make advice for the dissolution of the Provincial Assembly is absolute and does not require any valid constitutional reason for its exercise?

(b) Is a Chief Minister to make such advice on his own independent opinion or can he act in making such advice under the direction of some other person?

(c) If such advice of a Chief Minister is found constitutionally invalid for one reason or another, whether the provincial assembly dissolved in consequence thereof can be restored?

[…] I am of the opinion that it is implicit in the language of Article 184(3) that the conferred extraordinary original jurisdiction must be entertained and heard by the Full Court. In order to ensure public confidence in the proceedings in hand and keeping in view the importance of the questions raised for our consideration, it is imperative that the matter regarding the violation and interpretation of the Constitution is heard by a Full Court. The interpretation of Article 184(3) of the Constitution in this context, therefore, also requires interpretation.“

Header Photo — Supreme Court judges from left to right: Justice Yahya Afridi, Justice Mansoor Ali Shah, Justice Athar Minallah and Justice Jamal Khan Mandokhail. — Photo via SC website