Four judges offer dissenting views in suo motu case

ISLAMABAD: Four Supreme Court (SC) judges have written dissenting notes and raised objections over the suo motu notice taken on delay in announcement of dates for holding elections for Punjab and Khyber-Pakhtunkhwa (KP) assemblies, local media reported on Monday.

Justice Mansoor Ali Shah, Justice Yahya Afridi, Justice Jamal Khan Mandokhail and Justice Athar Minallah raised objections to the constitution of the bench as well as the suo motu notice taken on the date of the election.

Registering his reservations over the election date suo motu notice, Justice Mansoor Ali Shah termed as inappropriate the inclusion of a judge — on the bench — who was purportedly linked to a controversial audio leak and was reportedly facing references in Supreme Judicial Council.

Justice Shah in a note of dissent, released Monday, said he chose not to recuse himself from the case despite caveats regarding the invocation of the jurisdiction of this court and the constitution of the bench.

He, without mentioning the apex court judge, against whom a reference had been filed in the Supreme Judicial Council (SJC) and the issue of leaked audio, asked why an institutional response was not given in this regard.

“It is a constitutional and legal duty of every judge of this court to sit in a bench constituted by the hon’ble chief justice and hear case(s) entrusted to that bench, unless, for some lawful justification, a judge recuses himself from hearing a particular case. In the absence of any lawful justification, mere recusal may amount to abdication of the constitutional and legal duty. With this understanding, I have opted not to recuse myself from hearing these cases, despite having reservations on how the original jurisdiction of this Court under Article 184(3) of the Constitution has been invoked suo motu in the present case as well as on the constitution of the present Bench. I, however, find it my constitutional and legal obligation to bring on record my reservations, lest it may be misunderstood that I have none and my silence taken as my assent,” he noted.

He said the suo motu was invoked on the recommendation of a judicial order of a two-member bench while hearing a service matter of a civil servant. “The order was made in a case which, in my view, had no concern whatsoever with the present matter before us, reflecting to an ordinary reader of the order an unnecessary interest of the two-member bench in the matter.”

Justice Shah stated that attached to the said order was a controversy in the public domain, generated by the audio leaks relating to one of the members of the said bench. Lamenting the silence on the leaked audio clips and the allegations against a Supreme Court judge, Justice Shah said, “in spite of the 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.”

“Further, there is news of references being filed against the said member before the Supreme Judicial Council by the Bar Councils. In this background and before these allegations could be probed into and put to rest, the inclusion of the said member on the bench in the present matter of ‘public importance’ appears, most respectfully, inappropriate. This inclusion becomes more nuanced when other senior hon’ble judges of this court are not included on the Bench.”

“The chief justice has been pleased to observe in his order invoking the original jurisdiction of this Court under Article 184(3) of the Constitution suo motu, in categorical terms that ‘these matters involve the performance of constitutional obligations of great public importance apart from calling for faithful constitutional enforcement’.”

He added that despite all these facts, the two senior-most judges of this court had not been made part of the bench to hear and decide upon the matters of ‘great public importance’, for reasons not expressed in the order constituting the present bench.

“Our greatest strength as an apex judicial institution lies in the public confidence and public trust people of our country repose in us. Our impartiality, including the public perception of our impartiality, transparency, and openness in dispensing justice must at all times be undisputed and beyond reproach,” Justice Shah said.

In his dissenting note, Justice Mandokhail pointed out the three audio recordings, which were leaked recently. “In one recording learned Mr Abid Zuberi was reportedly talking to Pervaiz Elahi [former Punjab CM] about the pending case of Ghulam Mehmood Dogar, which in my opinion was very serious,” he noted.

The SC judge noted that Justice Ijazul Hassan and Justice Mazahar Ali Naqvi had made it clear that elections will be held within 90 days of dissolution of assemblies. “Both judges did not pay attention on Article 10A while giving their opinion,” he claimed.

“In such circumstances, it was not appropriate to refer the matter to Chief Justice for taking suo motu notice under Article 184(3) of the Constitution. Suo motu action is not justi ed,” he wrote.

Justice Yahya Afridi questioned the logic behind taking the suo motu notice despite the fact that the matter was pending before the high court in Punjab and Khyber Pakhtunkhwa. “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 Lahore High Court (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.”

While noting that the jurisdiction under Article 184(3) is “not affected by the pendency” of any matter before any other court or forum, the LHC verdict and “peculiarly charged and unflinching contested political stances” taken by the parties, warrant this court to show “judicial restraint” to bolster the principle of propriety.

The judge further added that this is to avoid any adverse reflection on the Supreme Court’s judicial pre-emptive eagerness to decide. “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.”

“Having decided that exercising powers under Article 184(3) of the Constitution in the present three petitions pending before us would not be appropriate, I find that my continuing to hear the said petitions is of no avail. However, I leave it to the worthy chief justice to decide my retention in the present bench hearing the said petitions.”

Justice Athar Minallah concurred with Justice Yahya Afridi and said in his dissenting note that the order of Chief Justice Umar Ata Bandial “does not appear to be consistent with the proceedings and the order dictated” in the open court.

The SC judge noted that the questions raised before them cannot be considered in isolation because questions regarding the constitutional legality of the dissolution of the provincial assemblies of Punjab and KP cannot be ignored.

“Were they dissolved in violation of the scheme and principles of constitutional democracy before completion of the term prescribed under the Constitution of the Islamic Republic of Pakistan (‘the Constitution’)?”

Justice Minallah said the questions regarding the legality of the dissolution involve far more serious violations of fundamental rights, adding “the matter before us is definitely premature, because it is pending before a Constitutional Court of a province, as noted in the opinion of my learned brother Yahya Afridi, J.”

Recalling the initial hearing of the case, he said that during the proceedings, he had proposed that the question of the legality of the dissolution of the respective provincial legislatures must also be examined before considering the matter placed before the court.

“The Hon’ble Chief Justice, who was heading the bench, had by assuming and invoking the suo motu jurisdiction conferred under Article 184(3), accepted to include the proposed questions for consideration. The learned brothers on the bench did not object and, therefore, while dictating the order in open court, the inclusion of the proposed additional questions for consideration was duly acknowledged and announced. The Hon’ble Chief Justice was, therefore, pleased to assume/invoke the jurisdiction in consonance with the principles highlighted by this Court in suo motu case No.4 of 2021 (PLD 2022 SC 306).”

Justice Minallah then noted down the questions;

Whether the power of a chief minister to make advice for the dissolution of the provincial assembly is [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?According to Justice Minallah, the interpretation of the Constitution is the prerogative, as well as, the duty of the apex court, which, he added, is also an onerous duty to protect, preserve and defend the Constitution.

“It has been observed by this Court that the Constitution is an organic document designed and intended for all times to come,” his note said, adding that the interpretation of the Constitution by this court has a profound impact on the lives of the people of this country, besides having consequences for future generations.

The framers of the Constitution, Justice Minallah said, had conferred an extraordinary jurisdiction on this Court under Article 184(3) and the manner in which this power is to be exercised is in itself a matter of immense public importance.

“While invoking the jurisdiction great care has to be exercised. Article 176 of the Constitution describes the constitution of this Court. I am of the opinion that it is implicit in the language of Article 184(3) that the conferred extraordinary original jurisdiction must be entertained and heard by the Full Court. In order to ensure public confidence in the proceedings in [sic] hand and keeping [sic] in view the importance of the questions raised for our consideration, it is imperative that the matter regarding the violation and interpretation of the Constitution is heard by a Full Court. The interpretation of Article 184(3) of the Constitution in this context, there/core, also requires interpretation,” Justice Minallah said.