Islamabad: The Supreme Court (SC) Justice Athar Minallah on Friday released his detailed note on the suo motu notice proceedings on the delay in holding elections in Khyber Pakhtunkhwa and Punjab, saying that the case was dismissed 4-3. This development adds yet another twist to the holding of provincial elections in the nation. There appeared to be a “lack of clarity” on the subject, according to Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial, who took suo motu notice of the elections in Punjab and Khyber Pakhtunkhwa on February 22. A nine-member bench was also established by Justice Bandial, and it was made up of himself, 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 Minallah— to hear the case.The CJP on February 27, however, split the larger bench into a five-member bench..
The SC also issued a written order, which was dictated in the open court on Feb 23 when Justice Jamal Mandokhail objected to the initiation of the proceedings under Article 184(3).Signed by nine judges, the written order of the bench stated that keeping in view the Feb 23 order, the additio¬nal notes attached by four jud¬ges, the CJP’s direction to add questions raised by Jus¬tice Shah, Justice Afridi, Justice Mando¬khail and Justice Minallah, as well as discussions/deliberations made in the anteroom of the apex court, the matter was referred back to the top judge.In response, the CJP recon¬s¬ti¬tuted the bench comprising himself, Justice Shah, Justice Akhtar, Justice Mandokhail, and Justice Mazhar.On March 1, the SC, in a 3-2 verdict, directed the Election Commission of Pakistan (ECP) to consult with President Arif Alvi for polls in Punjab and Governor Ghulam Ali for elections in KP.The majority judgement, given by CJP Bandial, Justice Akhtar, and Justice Mazhar, however, allowed the ECP to propose a poll date that deviates from the 90-day deadline by the “barest minimum”, in case of any practical difficulty.Justice Mandokhail and Justice Shah — who were among the four judges who had written additional notes in the Feb 23 order — dissented with the ruling.
In a joint dissent note, the two top court judges said that the suo motu proceedings initiated by the CJP were “wholly unjustified”, besides being initiated with “undue haste”.They also noted that the reconstitution of the bench was “simply an administrative act to facilitate the further hearing of the case by the remaining five members of the bench and could not nullify or brush aside the judicial decisions given by the two Hon’ble Judges in this case, which have to be counted when the matter is finally concluded.”They argued that Justice Ahsan and Justice Naqvi had not been removed from the bench but had voluntarily recused themselves. “Thus, their short orders are very much part of the case, therefore, the administrative order of reconstitution of the bench by the Hon’ble Chief Justice cannot brush aside the judicial decisions of the two Hon’ble Judges who had decided the matter when the case was heard by a nine-member bench.”They further said that the failure to count the decisions of Justice Afridi and Justice Minallah “would amount to excluding them from the bench without their consent, which is not permissible under the law and not within the powers of the Hon’ble Chief Justice”.“Therefore, we are of the opinion that the dismissal of the present suo motu proceedings and the connected constitution petitions is the order of the court by a majority of 4 to 3 of the seven-member bench.”
