ISLAMABAD, Mar 27 (APP): Two members of the five-judge Supreme Court’s bench, which heard a suo-motu case regarding the elections in provinces of Punjab and Khyber Pakhtunkhwa, on Monday issued their 27-page dissenting note.
Justice Mansoor Ali Shah and Justice Jamal Khan Mandokhail, in their dissenting note, stated, “We agree with the orders dated February 23, 2023 passed by Justice Yahya Afridi and Justice Athar Minallah and dismiss the present constitution petitions and drop the suo motu proceedings.”
They terminated the pleas and suo-motu case related to the elections of Punjab and KP provinces. “However, the high courts shall take decisions in the pending identical cases within three days,” they added.
The two judges said, “We find it essential to underline that in order to strengthen our institution and to ensure public trust and public confidence in our court, it is high time that we revisit the power of suo-motu.”
They said:”So far as the matter of constituting a bench for hearing a case under Article 184(3) of the Constitution is concerned, there must also be uniformity and transparency.”
They said, “The collegial model ensures good governance as it rests on collaboration, shared decision making and balance of power to ensure the best outcome. Unfortunately the top court could not make structure of its own powers”.
The two judges stated that the reasons for not issuance of the judgment in current case should also be made part of the record. “The decision of the four judges is an order of the court. It is a decision with ratio of four and one members. Our decision is the continuity of the decisions of Justice Yahya Afridi and Justice Athar Minallah.”
They said the top court had already declared that a bench could not be changed after issuance of the cause list. They said that the two judges had already given their decision on the suo-motu case and it did not become ineffective if they did not join the bench.
They noted that Justice Ijaz ul Ahsan and Justice Mazahar Ali Akbar Naqvi had willingly expressed excuse from hearing the case instead of being removed from the bench. The judges could not be removed from the bench against their will, they added.
They wrote, “We are also fortified in our opinion by the precedent of the well-known Panama case. In the said case, the first order of the court was passed by a 3-2 majority, and in the subsequent hearings conducted in pursuance of the majority judgment the two judges, who had made and announced their final decision, did not sit on the bench but they were not considered to have been excluded from the bench and were made a party to the final judgment passed by the remaining three judges, and they also sat on the bench that heard the review petitions.
The two judges observed that the basic principle of the Federation was provincial autonomy in the country. The high courts were top constitutional institutions at provincial levels and the top court should not interfere into it.
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