'Suo motu proceedings wholly unjustified'

ISLAMABAD: The Supreme Court (SC) on Wednesday directed the president to consult with the Election Commission of Pakistan (ECP) and announce the date for general polls in Punjab and asked the governor Khyber Pakhtunkhwa to announce elections in his province.  

The directives were issued in a 3-2 split verdict given by a five-member bench headed by the Chief Justice of Pakistan Umar Ata Bandial. 

The judges that opposed the verdict were Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail.

As per the dissenting note, the judges were of the view that the suo motu case was not admissible under Article 184/3, and the apex court should not use its authority under the article in such cases.

In the dissenting note, the two opposing judges termed the suo motu proceedings "wholly unjustified in the mode and manner they were taken up under Article 184(3) of the Constitution". They said that the suo motu notice had been initiated with "undue haste".

Following are the contents of the dissenting note:

• The suo motu case no 1 of 2023 and the two Const petitions no 1 and 2 of 2023 under Article 184(3) of the Constitution, in light of the principles settled in Manzoor Elahi and Benzair Bhutto, do not constitute a fit case to exercise the extraordinary original jurisdiction of this court under Article 184(3) of the Constitution and are thus not maintainable as the same constitutional and legal issues seeking the same relief are pending and being deliberated upon by the respective provincial high courts in Lahore and Peshawar, without there being any inordinate delay in the conduct of the proceedings before them.
• There is no justification to invoke our extraordinary jurisdiction under Article 184(3) to initiate suo motu proceedings or entertain petitions under Article 184(3) of the Constitution, as a single bench of the Lahore High Court has already decided the matter in favour of the petitioner before the said high court vide judgment dated 10.02.2023 and the said judgment is still in the field. The intra-court appeals (ICAs) filed against the said judgment are pending before the division bench of the Lahore High Court (and none of the said petitioners has approached this court under Article 185(3) of the Constitution).
• Once a constitutional issue is pending before a provincial high court, keeping in view the federal structure of our Constitution, the autonomy and independence of the apex provincial constitutional court should not be readily interfered with and rather be supported to strengthen the provincial autonomy and avoid undermining the autonomy of the provincial constitutional courts.
• There is no inordinate delay in the proceedings pending before the high courts, in fact the instant proceedings have unnecessarily delayed the matter before the high courts. However, considering the importance of the matter, we expect that the respective high courts shall decide the matters pending before them within three working days from today.
• Even otherwise without prejudice to the above, such like matters should best be resolved by Parliament.

"We, therefore, agree with the orders dated 23.02.2023 passed by our learned brothers, Yahya Afridi and Athar Minallah [...] and dismiss the present constitution petitions and drop the suo motu proceedings," the dissenting note read.

The judges also added a footnote mentioning the Feb 23 order of the Supreme Court in which dissenting notes of Justice Athar Minallah and Justice Yahya Afridi were also included.

"Initially, a nine-member bench heard this matter. The aforementioned two Hon’ble Judges decided the matter by dismissing the said petitions. Later on, two other Hon’ble Judges disassociated themselves from the Bench for personal reasons and as the two aforementioned judges had dismissed the matter, the Bench was reconstituted into a five-member bench vide order dated 27.02.2023. The decisions of the aforementioned two Hon’ble Judges dated 23.2.2023 form part of the record of this case," the footnote stated.