The failure of the political parties and the constitutional institutions, like the Election Commission of Pakistan and governors of Khyber Pakhtunkhwa and Punjab, to agree on and announce the date of provincial polls has involved the judiciary in the debate – that who can announce the date for provincial elections.
While exercising suo motu jurisdiction under article 184(3) of the c
onstitution, the Supreme Court (SC) of Pakistan has again put itself in the eye of the storm. Given the stakes of political parties and a sharply divided public opinion on the issue of elections in Pakistan, the SC may be dragged deeper into the political controversy that it must avoid. After all, the SC is the last hope for the people of Pakistan.
There is no cavil to the proposition that deciding a legal question entailing violation and interpretation of the Constitution or a question of public importance with reference to the enforcement of any of the fundamental rights provided under the constitution falls in the original jurisdiction of the SC under Article 184(3). However, while deciding such questions, the SC needs also to reflect upon how such a mandate is exercised to ensure public confidence in the proceedings of the court. Justice is not only done but is also seen to be done.
In the case at hand, the opinions of four honorable judges of the SC merit consideration by the honorable chief justice of Pakistan and the legal fraternity. It calls for introspection of the judiciary. The honorable judges, in their additional notes to the Feb 23 order, raise critical questions regarding the constitution of the bench as well as the invocation of the apex court's suo motu jurisdiction by the honorable chief justice.
Justice Jamal Khan Mandokhail notes how could the chief election commissioner of Pakistan be called in the court and asked about the holding of elections to the provincial assembly of Punjab when he was not even a party in the case of Ghulam Mehmood Dogar. Particularly, when there were audio recordings in the public domain regarding the communication of advocate Abid Zuberi and ex-chief minister about the pending case of Dogar. In this context, Justice Mandokhail considers suo motu notice of the case by the honorable chief justice unjustified.
Justice Mansoor Ali Shah considers that the inclusion of a member in the bench despite controversy generated by the audio leaks about that member, and that too before the allegation is probed into and put to rest, is inappropriate. This inclusion, he maintains, becomes more nuanced when other senior honorable judges of the court are not included on the bench. Justice Shah pinpoints the unnecessary interest of the two-member bench in the matter that recommended a suo motu to the chief justice. He further highlights that despite 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.
Justice Yahya Afridi points out that when the same issue was pending before the Lahore High Court, the SC should show judicial restraint to bolster the principle of propriety and avoid any adverse reflection on the SC's judicial preemptive eagerness to decide on the matter. According to Justice Afridi, it would disturb the judicial propriety that the high court deserves in the safe, mature, and respectful administration of justice.
Justice Athar Minallah goes on to state, “I also had the privilege of going through the order of the honorable Chief Justice of Pakistan. However, with the utmost respect, it does not appear to be consistent with the proceedings and the order dictated in the open Court”. Considering the importance of the questions raised and to ensure public confidence in the proceedings in the case, Justice Minallah proposes that a full court hears the matter.
In the above context, the role of the SC and the exercise of judicial power have become pivotal. The political parties, legal fraternity, and the people now talk about the accountability of institutions, including the judiciary. The courts are subjected to increasing criticism and accused of bias. Thus, the honorable chief justice should take this opportunity to address these concerns and reform the judiciary. The people keep faith in the constitutions and state institutions. If public trust is eroded through a lack of accountability within the institutions, it will weaken Pakistan.
To deal with the current political crisis, there seems no harm if a full court is constituted, without the inclusion of those members who have been perceived as controversial, to decide the questions on the conduct of provincial polls in KP and Punjab.
In any case, all institutions must follow the constitution. The government should consider holding polls within the 90-day deadline or early general elections to protect democratic order in the country. The SC should not be unnecessarily burdened with political controversies. Thousands of pending cases of ordinary citizens also need the attention of the honorable judges of the apex court.
The writer is an advocate of the Supreme Court of Pakistan.
While exercising suo motu jurisdiction under article 184(3) of the c
onstitution, the Supreme Court (SC) of Pakistan has again put itself in the eye of the storm. Given the stakes of political parties and a sharply divided public opinion on the issue of elections in Pakistan, the SC may be dragged deeper into the political controversy that it must avoid. After all, the SC is the last hope for the people of Pakistan.
There is no cavil to the proposition that deciding a legal question entailing violation and interpretation of the Constitution or a question of public importance with reference to the enforcement of any of the fundamental rights provided under the constitution falls in the original jurisdiction of the SC under Article 184(3). However, while deciding such questions, the SC needs also to reflect upon how such a mandate is exercised to ensure public confidence in the proceedings of the court. Justice is not only done but is also seen to be done.
All institutions must follow the constitution. The government should consider holding polls within the 90-day deadline or early general elections to protect democratic order in the country. The SC should not be unnecessarily burdened with political controversies. Thousands of pending cases of ordinary citizens also need the attention of the honorable judges of the apex court.
In the case at hand, the opinions of four honorable judges of the SC merit consideration by the honorable chief justice of Pakistan and the legal fraternity. It calls for introspection of the judiciary. The honorable judges, in their additional notes to the Feb 23 order, raise critical questions regarding the constitution of the bench as well as the invocation of the apex court's suo motu jurisdiction by the honorable chief justice.
Justice Jamal Khan Mandokhail notes how could the chief election commissioner of Pakistan be called in the court and asked about the holding of elections to the provincial assembly of Punjab when he was not even a party in the case of Ghulam Mehmood Dogar. Particularly, when there were audio recordings in the public domain regarding the communication of advocate Abid Zuberi and ex-chief minister about the pending case of Dogar. In this context, Justice Mandokhail considers suo motu notice of the case by the honorable chief justice unjustified.
Justice Mansoor Ali Shah considers that the inclusion of a member in the bench despite controversy generated by the audio leaks about that member, and that too before the allegation is probed into and put to rest, is inappropriate. This inclusion, he maintains, becomes more nuanced when other senior honorable judges of the court are not included on the bench. Justice Shah pinpoints the unnecessary interest of the two-member bench in the matter that recommended a suo motu to the chief justice. He further highlights that despite 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.
Justice Yahya Afridi points out that when the same issue was pending before the Lahore High Court, the SC should show judicial restraint to bolster the principle of propriety and avoid any adverse reflection on the SC's judicial preemptive eagerness to decide on the matter. According to Justice Afridi, it would disturb the judicial propriety that the high court deserves in the safe, mature, and respectful administration of justice.
Justice Athar Minallah goes on to state, “I also had the privilege of going through the order of the honorable Chief Justice of Pakistan. However, with the utmost respect, it does not appear to be consistent with the proceedings and the order dictated in the open Court”. Considering the importance of the questions raised and to ensure public confidence in the proceedings in the case, Justice Minallah proposes that a full court hears the matter.
In the above context, the role of the SC and the exercise of judicial power have become pivotal. The political parties, legal fraternity, and the people now talk about the accountability of institutions, including the judiciary. The courts are subjected to increasing criticism and accused of bias. Thus, the honorable chief justice should take this opportunity to address these concerns and reform the judiciary. The people keep faith in the constitutions and state institutions. If public trust is eroded through a lack of accountability within the institutions, it will weaken Pakistan.
To deal with the current political crisis, there seems no harm if a full court is constituted, without the inclusion of those members who have been perceived as controversial, to decide the questions on the conduct of provincial polls in KP and Punjab.
In any case, all institutions must follow the constitution. The government should consider holding polls within the 90-day deadline or early general elections to protect democratic order in the country. The SC should not be unnecessarily burdened with political controversies. Thousands of pending cases of ordinary citizens also need the attention of the honorable judges of the apex court.
The writer is an advocate of the Supreme Court of Pakistan.