SC takes cognizance of delay in Punjab, KP polls; forms a nine-member bench to take up the matter early next week

Islamabad: In a significant move to break the impasse maring the political landscape of the country, the Supreme Court of Pakistan (SCP) has in a suo-motu move constituted a nine-member bench to take up the case of provincial elections in Punjab and Khyber Pakhtunkhwa (KP).

Ever since the two assemblies were dissolved last year, the concerned state institutions, including the Election Commission of Pakistan, have been using legal lacunae to flout each other’s orders, thereby undermining the Constitution and pushing the country to a state of anarchy.

The SCP was sucked into the situation due a constitutional crisis being created by institutions such as the ECP and the offices of governors of the two provinces.

These institutions had been putting off the constitutional requirement of holding elections in Punjab and KP within 90 days of the dissolution of those parliaments. Even the clear-cut directions of the Lahore High Court (LHC) in this regard were not complied with, citing technical issues.

Earlier, the President of Pakistan stepped in to bring an end to the stalemate and called the Chief Election Commissioner (CEC) for consultation, but he refused to comply with the President’s orders, again on technical grounds. Following this, the president invoked his powers under Section 57-1 of the Elections Act 2017 and announced 9 April as the date of elections in both these provinces. But the ECP rejected the presidential orders, terming them as unconstitutional.

In the meantime, while hearing a case linked to the transfer of Lahore’s Capital City Police Officer (CCPO), a Supreme Court bench comprising Justice Ejazul Ahsan and Justice Mazahar Ali Akbar Naqvi referred the matter to the Chief Justice of Pakistan for suo-motu action.

The said request was sent to the Chief Justice on February 16, but the Chief Justice delayed action until 22 February so as to allow time to the ECP and the governors of two provinces to resolve the matter at their end.

But given the continued inaction on part of the concerned departments, and the flouting of presidential orders, Chief Justice, Umar Ata Bandial, has finally taken suo motu notice and constituted a nine-member bench to take up the case.

The Punjab and KP assemblies were dissolved on the request of their respective chief ministers on 14 and 18 January respectively. Under the law, the ECP and the provincial governors are required to arrange the elections within 90 days of assembly dissolution.

In his remarks during Friday’s hearing, Chief Justice Bandial said that the Constitution and the people of Pakistan had knocked at the door of the apex court and they will not be disappointed. He said that no one would be allowed to breach any provision of the Constitution.

The court has decided to suspend hearings of routine cases, and will start holding hearings into the case of provincial elections on daily basis beginning Monday.

In his opening remarks, the Chief Justice said that the Constitution was clear on the holding of elections within 90 days of the assembly dissolution, and that the court will determine as to who has the constitutional authority to fix the election date; how and when this constitutional responsibility will be discharged; and what are the constitutional responsibilities of the federation and the provinces regarding the holding of general elections.

The court issued notices, among others, to the president, the ECP, the attorney-general as well as the chief secretaries, governors and advocates-general of the two provinces.

Apart from Chief Justice Umar Ata Bandial, the nine-member bench comprises 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.

Meanwhile, according to Fawad Chaudhry, a central leader of Pakistan Tehreek-e-Insaf (PTI) which was in power in Punjab and KP before it dissolved those assemblies, the coalition government of Pakistan Democratic Movement (PDM) which “deliberately created confusion over the announcement of election date, has now started mud-slinging on judges of the superior courts to pressurize them and get a verdict of their choice.”

Some legal experts agree with this view. They say that PML-N has always followed a trend to bash the judges in a systematic manner, ostensibly to bring the superior judiciary under pressure on various counts.

More recently, the credibility of judges of the superior courts has been called into question by no less a person than Prime Minister Shehbaz Sharif himself, and the entire bandwagon of PML-N has joined the chorus, they say.

In a recent statement, Shehbaz Sharif said that “the judges who are biased against us should not sit in the benches that hear cases involving the PML-N.” He added that he was saying this in his capacity as the party president and not as the chief executive of the country.

Since the Chief Justice took suo-motu notice of delay in elections, the ruling coalition, particularly the cabinet members belonging to PML-N, have started media bashing of certain judges of the Supreme Court. They include the Federal Law Minister, Azam Nazir Tarar, Defence Minister Khwaja Mohammad Asif, and nearly all the frontline leaders of PML-N.

Senior Vice-President and Chief Organiser of PML-N, Maryam Nawaz Sharif, recently alleged that many serving as well as some retired judges were out to pave the ground for PTI chief Imran Khan’s return to power.

While addressing a workers’ convention in Sargodha last week, she displayed portraits of four serving and retired judges and General (retd) Faiz Hameed, a former director-general of the spy agency, the Inter-Services Intelligence (ISI), saying that these people were behind her father Nawaz Sharif’s outer from power.

Stooping to a new low in Pakistani politics, Maryam accused the two serving judges — Justice Ejazul Ahsan and Justice Syed Mazahar Naqvi — and two retired ones — namely former chief justice Saquib Nisar and justice (retd) Azmat Saeed — as being behind that conspiracy. She also accused the current chief justice of ‘bench fixing’ to further their agenda. Maryam’s targeting of the superior judiciary has been widely condemned by the members of the legal fraternity, civil society members and the public at large.

Former Attorney General of Pakistan, Mansoor Ali Khan, said that “such foul language and serious allegations were never leveled against the superior judiciary before,” and that in his view, the Chief Justice should take action against Maryam Nawaz under the contempt law.

He said that if someone had reservations over the conduct of a judge, they should take the matter to the appropriate forum, which is the Supreme Judicial Council. But such mudslinging and bashing of superior judiciary in public should not be tolerated, he added.

Legal and constitutional experts have expressed serious concerns over the media bashing of the judges of the superior courts, especially those levelled by Maryam. Although normally the courts adopt restraint in taking up matters of contempt, in the given case the PML-N leaders have started a well-thought-out campaign to malign the superior judiciary, they said.

These views were reflected by the lawyer representing the Awami Muslim League (AML) President, Sheikh Rashid Ahmad, who prayed to the court to take notice of Maryam’s allegations against senior serving and retired judges and initiate contempt proceedings against her.

In the meantime, advocate Farooq H Naik, who is representing the PPP, the PML-N and the Jamiat-e-Ulema-i-Islam-Fazl (JUI-F) in the case, raised objections over the composition of the nine-member bench, saying that Justices Ejazul Ahsan and Mazahar Naqvi should recuse themselves from the bench as they were the ones who sent the suo-motu action request to the Chief Justice, and could therefore be accused of bias.

Some quarters have also demanded the constitution of a full-court bench to hear this case, but Chief Justice Umar Ata Bandial said that these matters will be taken up after the court has first looked into the merits of admissibility of the case on Monday.

Legal Fraternity

“The PML-N leader (Maryam) has accused the judges of favouritism… What does she want to prove? Does she want to make apex court benches of her own choice? That’s why she has divided the supreme court judges in two groups — one is in favuor of the PML-N other one is against.”

Aitzaz Ahsan
Senior Supreme Court lawyer & leader PPP

“The PML-N has a history of targeting the judiciary… it tries to make judges controversial whenever they take up cases against them. The PML-N leader (Maryam) is targeted judges, who are part of the bench hearing the suo motu case about delay in general election in two provinces. It is a clear effort to make the bench controversial. The judiciary should take notice (of these allegations) and ask Maryam to prove them in the court.”

Khawaja Naveed

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Former High Court Judge & advocate Supreme Court

“Criminal or contempt of court charges should be brought up against Maryam Nawaz for her remarks against the judiciary. She is trying to divert the course of justice by criticizing judges, which comes under the contempt of court… Imran Khan had to apologize to the judge for making a statement that he would take legal action after her.”

Shoaib Shaheen
President Islamabad High Court Bar Association