Judgment of Athar Minallah J in the election matter of Punjab Assembly - Khalid Zafar & Associates

In respect of the issue in hand for conducting elections of Provincial Assembly of Punjab within 90 days Mr. Justice Athar Minallah has given a detailed decision in support of his short order dated 23/02/2023 for dismissing the constitutional petitions and suo moto proceedings. The learned judge did not decide the questions of law  which were under consideration in the petitions including the question of conducting elections within 90 days from the date of dissolution of assemblies and instead rendered his judgment on the technical ground of discussing the issue of jurisdiction of Supreme Court in light of the precedents. The Petitions were dropped/dismissed on the following fundamental grounds:

  1. The first ground was the precedents of Manzoor Ellahi1 Case and Benazir Bhutto2 Case laid down by Full Court of 11 members bench under Article 184(3) which pertains to the jurisdiction of the Supreme Court regarding matters in which cognizance can be taken by the High Courts. The learned judge observed that jurisdiction vested in the Supreme Court and the High Courts under Article 184(3) and Article 199 respectively, is concurrent. The lower court or tribunal must be approached in the first instance when the jurisdictions are concurrent.
  2. Secondly, in matters which involve the interest of the political parties, utmost caution must be exercised so as not to prejudice the appearance of impartiality of the Court, particularly when the jurisdiction is invoked suo moto. The learned judge observed that powers under Article 184(3) of the Constitution is to be exercised for protecting the fundamental rights of the vulnerable, marginalized and depressed classes of the society. It is further observed that the matter placed before Supreme Court is essentially of political nature and one of the High Courts have already adjudicated upon it. The independence and competence of a High Court is likely to be undermined by assuming that the question raised before Supreme Court cannot be resolved or answered by the High Court.
  3. The third and last ground was the conduct and bona fides of the political stakeholders who have approached the Supreme Court. The learned judge observed that legitimacy of the Court’s verdict solely depends on the public’s belief that the Court is an independent, impartial and political arbiter of disputes between political stakeholders. The learned judge has discussed in detail the start of present political crises in the country and role of judiciary in the same, the role of Supreme Court in the previous political turmoil. The learned judge further discussed the indulgence of the court which lead to financial implications and exposed the State to international litigation.

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References:

  1.  Manzoor Elahi v. Federation of Pakistan PLD 1975 SC 66
  2.  Benazir  Bhutto   v.  Federation of Pakistan (PLD  1988  SC  416 )

 

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