Justices Minallah, Yahya question very spirit of suo motu
Pakistan
Pendency before any other court brings SCP's propriety in question
ISLAMABAD (Dunya News) – Following the recusal of Justice Jamal Khan Mandokhail and Justice Mansoor Ali Shah in the hearing of a suo motu case regarding the elections' date in Punjab and Khyber Pakhtunkhwa (KP), Justice Athar Minallah and Justice Yahya Afridi distanced themselves from the nine-member bench while writing additional notes made public on Monday, questioning the interpretation of the suo motu case initiated by Chief Justice of Pakistan (CJP) Umar Ata Bandial.
Both judges questioned the jurisdiction of the case being proceeded in the SC as it was also pending with the Lahore High Court (LHC).
The bench comprised Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Syed Mazahar Ali Akbar Naqvi, Justice Syed Mansoor Ali Shah, Justice Jamal Khan Mandokhail, Justice Yahya Afridi, Justice Athar Minallah and Justice Muhammad Ali Mazhar.
Justice Yahya wrote, “For detailed reasons to be recorded later, it appears that prima facie these petitions fall within the purview of Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. However, it would not be judicially appropriate to exercise the power to make an order under the aforementioned provision of the constitution given that the matters raised in the petitions are presently pending adjudication before the LHC in Intra-Court Appeal No. 11096 of 2023, Contempt of Court Petition No. 10468/W/2023, and the Peshawar High Court in Writ Petition No. 407-P/2023.”
Finding that the jurisdiction under Article 184(3) is “not affected by pendency” of any matter before any other forum, the court exercises “judicial restraint” because of the “peculiarly charged and unflinching contested political stances” taken by the parties.
Noting the effect of any finding on the SC’s judicial propriety, he wrote, ”Therefore, passing any finding or remarks during the proceeding of the present petitions by this court would not only prejudice the contested claims of the parties in the said petition/appeal pending before the respective high courts but, more importantly, offend the hierarchical judicial domain of the high court as envisaged under the Constitution. It would also disturb the judicial propriety that the high court deserves in the safe, mature, and respectful administration of justice. Accordingly, I dismiss these three petitions.”
Justice Minallah agreed with Justice Yahya writing the CJP’s order "does not appear to be consistent with the proceedings and the order dictated". The CJP demanded questions from me which are as under:
Whether the power of a chief minister to make advice for the dissolution of the provincial assembly [sic] absolute and does not require any valid constitutional reason for its exercise?
Is a chief minister to make such advice on his own independent opinion or can he act in making such advice under the direction of some other person?
If such advice of a chief minister is found constitutionally invalid for one reason or another, whether the provincial assembly dissolved in consequence thereof can be restored?
He wrote that Constitution was bound to be followed as its interpretations had effects on people and the coming generations. The power to invoke a suo motu case demands extensive care and a full court must be constituted to hear matters of such importance. Therefore, it renders questioning the CJP’s power to invoke a suo motu.
