“The jurisdiction of a court is determined by the constitution and law not by caprice and convenience of the judges. And, it is the nature of the controversy that determines the jurisdiction of a court and not the magnitude of the interests involved. When caprice and convenience of the judges takes over, we enter the era of an ‘imperial Supreme Court’.” Justice Syed Mansoor Ali Shah warned the other members of the bench on the initiation of suo motu proceedings in the Punjab and Khyber Pakhtunkhwa (KP) elections case. He further observed that the Supreme Court should act “with circumspection” only in “exceptional cases” of public importance for the enforcement of fundamental rights. Being the “first and final arbiter” due care and caution should be taken while invoking the jurisdiction under article 184(3) of the constitution. There is no provision for appeal against the order passed by the Supreme Court in this capacity.
Justice Jamal Khan Mandokhail also concurred with the view taken by Justice Syed Mansoor Ali Shah after finally deciding the matter. Prior to the detailed judgment on the election in two provinces, the other two members of the bench, Justice Athar Minallah and Justice Yahya Afridi categorically declared that the Supreme Court should show restraint by not involving itself in a political matter.
The suo motu proceedings started out of the blue during the hearing of a case regarding the transfer of Capital City Policy Officer (CCPO) Lahore Ghulam Muhammad Dogar by a two-member bench consisting of Justice Ijaz ul Ahsan and Justice Syed Mazahar Ali Akbar Naqvi. The bench asked the Chief Justice of Pakistan Umar Ata Bandial to initiate suo motu proceedings on apprehension of delay in the election of Punjab and KP assemblies. The two assemblies had been dissolved on the advice of their respective chief ministers on the direction of Chairman Pakistan Tehreek-e-Insaf Imran Khan. The speakers of both the dissolved assemblies instantly filed their applications to become part of the proceedings before a nine-member bench, constituted by the chief justice to hear the matter.
There were a few twists in the proceedings. First, two members of the bench were compelled to recuse themselves after objections from political parties, bringing the strength of the bench to seven. Later, when two members Justice Yahya Afridi and Justice Athar Minallah dismissed the suo motu proceeding and constitutional petitions at the outset, the chief justice was left with no other option but to proceed with five members in the bench. The five-member bench decided the matter with a 3-2 majority and directed the Election Commission of Pakistan (ECP) to hold elections in both provinces through its order dated 28 February 2023. It directed the ECP to announce the election date for Punjab in consultation with the president and do the same for KP in consultation with the governor of KP. However, the decision ignited a new controversy when Justice Shah clarified that the matter was dismissed with a majority of 4-3. This resulted in a new legal argument on the authenticity of the judgment passed by the Supreme Court.
The Supreme Court, while announcing its verdict by 3-2 instead of 4-3, completely ignored the stance taken in the Panama Case when two members of the bench expressed their view about disqualification of Mian Muhammad Nawaz Sharif without a formal inquiry at the initial stage of the proceeding and their observations were made part of the detailed judgment. But in the judgment given on 28 February, the court did not make observations of Justice Minallah and Justice Afridi part of the judgment.
Moreover, the decision shows deviation from constitutional provisions by the Supreme Court, which directed the president of Pakistan to decide the date of the Punjab Assembly election after consultation with the ECP, ignoring that it is the sole prerogative of the governor of the province and no role of the president is provided in the constitution. However, in the matter of the KP election, it followed the constitutional scheme and directed the governor to issue the date of the election.
During this constitutional feud, the ECP announced 8 October 2023 as the date of the general elections in the country, intending to hold elections of all assemblies on the same date. The Supreme Court again formed a five-member bench to look into the legality of the notification of the ECP by invoking its suo motu powers on 27 March. Again two members of the bench Justice Amin-ud-Din Khan and Justice Jamal Khan Mandokhail recused themselves for having a different view on the question of invoking suo motu powers by the chief justice of Pakistan. Finally, a three-member bench of ‘likeminded judges’ announced its verdict on 3 April 2023, directing the ECP to hold an election only in Punjab on 14 May 2023. It did not dilate upon the election in KP by genially accepting the request of the counsels of the parties and sending the matter to the respective provincial high court.
The Supreme Court, being the guardian of the constitution and protector of the fundamental rights of individuals, should not become part of a political battle. Instead, it should maintain its independence, impartiality and supremacy of law.
The Supreme Court has made several errors. Adopting different approaches to the election of the two provincial assemblies, the Supreme Court has unnecessarily brought itself under fire from the lawyers’ bodies and political parties. It was not appropriate for Justice Ijaz ul Ahsan to sit on the bench as earlier he had recused himself from hearing the election matter on the objection of the political parties. By becoming part of a bench that was deliberating on the same question, he has stained the credibility of the institution. The chief justice, after a difference of opinion with his four brother judges, should have constituted a larger bench or full court to uphold the impartiality and neutrality of the court instead of forming a new five member bench including Justice Ijaz ul Ahsan.
The Supreme Court has also left an important question unanswered. After the election of two provincial assemblies, how would the elected governments ensure free and fair elections of the National Assembly in their respective provinces without any involvement or influence? The law and the judgments are expected to keep an eye on the future, but the court has ignored the future implication of its judgment. Holding elections in Punjab and KP three months before the election of Sindh, Balochistan and National Assemblies would negatively impact the political scene. The election results of the two provincial assemblies would work as a trendsetter for Sindh and Balochistan which already complain of deprivation and partiality. It would further aggravate the mistrust and discontentment in smaller provinces.
The Supreme Court, without any constitutional mandate, directed the State Bank of Pakistan to release Rs21 billion for elections in two provinces, ignoring the fact that the country is going through the worst economic crisis, aggravated by last year’s floods. The direction has invited strong reaction from Parliament which rejected the bill presented by the government to release funds for the election. Instead, it passed a resolution against the judiciary over its attempts to “usurp the authority of the Parliament to legislate and interfere in its constitutional jurisdiction.”
For the first time in the history of Pakistan, the Parliament has decided to stand up to the judiciary. Prime Minister Shehbaz Sharif has given a clear message to the judiciary that he would follow the will of the Parliament and not release funds. The announcement by the prime minister was strongly supported by another senior member of the Pakistan Democratic -Movement (PDM) Maulana Fazal-ur-Rehman through his hard-hitting press conference warning of a mass movement if the Supreme Court insisted on holding the election on 14 May. Senior Vice President and Chief Organiser of PML-N Maryam Nawaz also criticised the role of the judiciary and said that the “new judicial establishment” is active to support Imran Khan. The criticism by political leaders has strengthened the view taken by Justice Athar Minallah that Supreme Court must not involve itself in the political fray.
The Supreme Court claimed to uphold the constitution by announcing the election date of 14 May but in reality, defied the same as the constitution demands election to be held within 90 days period which already elapsed on 14 April. The Supreme Court, without any lawful justification, assumed the powers of the ECP and extended the date of the election, ignoring the fact that it is the sole prerogative of the ECP.
There is no justification for not adjudicating the issue of the KP provincial election on the request of the counsels to approach the ‘appropriate forum’. It could have turned down the request of the counsels as it has done many a time in past on the principle that the command of the law has to be followed, not the will of the parties. By showing leniency on the KP election and adopting an unflinching stance on the Punjab election, the Supreme Court has unfortunately undermined its credibility. The constitution must be applied invariably, without any exception.
It has been established in the Benazir Bhutto vs the Federation of Pakistan case that, in a matter of concurrent jurisdiction of courts, the lower forum should be given preference, limiting the jurisdiction of the higher forum. The Supreme Court has categorically held that it can only assume jurisdiction in exceptional circumstances. In the current case, there were no such circumstances, as the appeal of the ECP is already pending before the relevanthigh court. The Supreme Court has never invoked its constitutional jurisdiction under 184(3) in such a situation and has adopted a consistent view over time that the court must restrain itself from taking cognisance of matters already pending adjudication before the relevant high court. It is akin to undermining the authority of the relevant court and also deprives the parties of their right to appeal, which is against the spirit of the law and the constitution.
The Supreme Court, being the guardian of the constitution and protector of the fundamental rights of individuals, should not become part of a political battle. Instead, it should maintain its independence, impartiality and supremacy of law. The judicial history is marred with many controversial decisions as a result of deviation from upholding the canons of law, bringing disgrace and derision to the institution. The court has also not considered that the census in Punjab is not complete yet. By holding the election on 14 May, it would deprive a considerable number of voters of their right to elect their representatives. To resolve all these constitutional and legal issues, the chief justice should constitute a full bench to restore public confidence in the institution which is considered to be the final hope by the entire society.
The writer is an advocate of the Supreme Court.