Election delay suo moto hearging: Justice MandoKhail has reservations about judges

One of the members of the nine-judge bench of the top court hearing a suo moto case related to elections in KP and Punjab has reservations about the proceedings, 24NewsHD TV channel reported on Thursday.

The notice taken by the chief justice of Pakistan is not valid, Justice Jamal Khan Mandokhail opined in his dissenting note.

The circumstances in which the notice was taken did not happen, he maintained.

Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial yesterday 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.

Elections are to take place in both provinces after previous PTI governments had dissolved their assemblies before the expiry of their five-year mandated term on the orders of party chief Imran Khan.

The suo motu notice was taken two days after President Dr Arif Alvi unilaterally announced April 9 as the date for holding elections in both provinces after his invitation for consultations on the matter was turned down by the Election Commission of Pakistan (ECP).

The CJP constituted a nine-member bench comprising Justice Ijazul 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.

According to Justice Mandokhail, Justice Ijazul Ahsan and Justice Mazahar Ali Akbar Naqvi summoned the chief election commissioner in a case and sent a note to the chief justice for taking notice that has nothing to do with the case under hearing

This is how these two judges expressed their final opinion, he observed and added the chief justice also agreed with the opinion and took notice.

“Apparently, it seems that the Chief Justice has also expressed his final opinion. Sitting on the bench after the final opinion of the three judges is against Article 10A of the Constitution,” the top court judge remarked. 

In the written note, he stated that late last night he received a file that the CJ took suo motu notice on the basis of an order passed by Justice Ijaz and Justice Mazahar Ali Akbar Naqvi, which was filed by Ghulam Mehmood Dogar against the order dated November 24, 2022, passed by the Federal Service Tribunal (FST) in respect of his transfer.

He continued:  "Learned Mr Abid S Zuberi is the counsel for Ghulam Mehmood Dogar. The petition of Ghulam Mehmood Dogar was pending when on February 16 the members of the bench called the Chief Election Commissioner (CEC) of the Election Commission of Pakistan (ECP), who was not a party to the petition and asked about the holding of elections to the Provincial Assemblies.

"Irrespective of the reply of the CEC, Justices Ahsan and Naqvi deemed it appropriate to refer the matter to the CJP to take suo motu notice. The matter pertaining to the election had no nexus or connection with the abovementioned service matter to the former chief minister about the pending case.

“Three audio recordings emerged and in one recording it was learned that Abid Zuberi was reportedly talking about Ghulam Mehmood Dogar. This is “very serious.

"Besides the learned judges have already expressed their opinion by stating that elections are required to be held within 90 days and that there was imminent danger of violation of the Constitution.

“The CJ added to the points mentioned by the two learned judges and also expressed his opinion that such “definite opinions have decided this matter and done so without taking into consideration Article 10(a) of the Constitution”.

"Thus, in these circumstances, it was not appropriate to refer the matter to the chief justice for taking suo motu notice under Article 184(3) of the Constitution," he said, reiterating that the suo motu action was not justified.

According to legal experts, Justice Jamal Mandukhel's note is an objection to the presence of the three judges.