KP, Punjab election suo motu: Dissenting note of justices Shah and Mandokhail

ISLAMABAD: Two members, Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail, of the five-member Supreme Court bench dissented with the majority verdict issued today (Wednesday) in the suo motu notice taken on the delay in the Khyber Pakhtunkhwa (KP) and Punjab assembly polls. 

The apex court had, earlier in the day, announced a split verdict on the sou motu notice, directing the authorities to conduct elections in the two provinces within 90 days.

As per the dissenting note, the suo motu case wasn't admissible under Article 184/3, and the SC shouldn't 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. 

President to announce date for Punjab polls, governor for KP

In the three-two split verdict, the SC directed President Arif Alvi to announce the date of the Punjab election in line with the apex court's order after consulting with the Election Commission of Pakistan (ECP), and directed the KP governor to announce the date for polls in his province.

For the ECP, the SC ordered immediate advice to the president on the date of the election.

"The elections in all the provinces should be held within the constitutional period," the court stated, directing all the federal and provincial bodies to assist the electoral body with the election process.

Moreover, the SC directed the federal government to provide all facilities to the ECP to conduct the elections.

Meanwhile, the SC declared the pleas related to the provincial elections admissible and disposed them.