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Article 184(3) used only to fill law lacunas, says Supreme Court

Updated November 28, 2018

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Apex court issues notice to AG in case against ECP’s order for re-polling in 14 polling stations of Balochistan. — File
Apex court issues notice to AG in case against ECP’s order for re-polling in 14 polling stations of Balochistan. — File

ISLAMABAD: Justice Sheikh Azmat Saeed of the Supreme Court has said the top court invokes its jurisdiction under Article 184(3) of the Constitution only to fill vacuum or lacunas in laws.

He made this observation on Tuesday while hearing identical petitions moved by Zamruk Khan and Habibullah Kakozai against the Election Commission of Pakistan’s (ECP) decision of holding re-polling in over a dozen polling stations of the Balochistan Assembly’s constituency of PB-21 (Killa Abdullah).

The SC had suspended the ECP’s order for re-polling in 14 polling stations of the constituency and issued notices to Attorney General (AG) Anwar Mansoor and other respondents.

Apex court issues notice to AG in case against ECP’s order for re-polling in 14 polling stations of Balochistan Assembly constituency

Senior counsel Iftikhar Gillani, who represented the respondents, opposed the petitions, arguing that no appeal could be filed directly in the apex court under Article 184(3) of the Constitution — a provision which empowered the top court to intervene in matters involved in enforcement of fundamental rights.

By entertaining appeals under Article 184(3), the SC was, in fact, denying forums to litigants and their right to appeal, the counsel argued.

Justice Saeed observed that Article 184(3) was invoked for the first time by the apex court in the 1994 Shehla Zia case in which it had decided a public interest litigation regarding potential health risks to inhabitants posed by a nearby electricity grid station. The judgement discussed in detail issues in environmental protection and the right to life of people.

Justice Saeed said he was a student when the Shehla Zia case was decided.

Senior counsel Wasim Sajjad, who represented petitioner Zamruk Khan, argued that under Article 218(3) the ECP could decide about an election dispute within 60 days after the general election and after that period the matter was always referred to the election tribunal.

The SC issued a notice to AG Mansoor with an observation that the issue at hand seemed interesting.

The exercise of Article 184(3) has generated debate in the past. In September, Chief Justice of Pakistan Mian Saqib Nisar had expressed his intention to determine the jurisdiction exercised under this article of the constitution to regulate powers of the court. Later the court had taken up a case relating to the scope of Article 184(3) that empowers the top court to initiate suo motu proceedings on matters it considers against the law.

The frequent use of suo motu powers during the period when Iftikhar Muhammad Chaudhry was chief justice of Pakistan had raised many eyebrows among the legal fraternity, who repeatedly highlighted the need to determine limits or constraints for the exercise of suo motu jurisdiction so that the judiciary’s credibility was not eroded.

At that time lawyers were of the view that the excessive use of Article 184(3) under the public interest litigation sometimes sealed the fate of the aggrieved party, especially when an altogether different issue cropped up in collateral proceeding and totally a different aspect was brought to the notice of the court.

Published in Dawn, November 28th, 2018

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