Counsel for Gujjar Nulla affectees has approached the Supreme Court seeking constitution of a larger bench to avoid public controversy regarding the exercise of suo motu jurisdiction under Article 184 (3) of the constitution in the case.
In an application moved by Faisal Siddiqi, the affectees said: "These proceedings have and will have far-reaching implications for the fundamental rights of thousands of affected individuals, entities and groups as well as legal precedential implications for future judicial adjudications and for this reason also the constitution of a larger bench (is needed).”
Siddiqi has also moved similar applications in three other cases for the formation of a larger bench or full court.
A three-judge bench of the apex court led by Chief Justice of Pakistan (CJP) Gulzar Ahmed will take up review petitions against its orders regarding the demolition of several buildings in Karachi.
Regarding the application in the Gujjar Nullah case, Siddiqi stated that the review application deals with the demolishment of thousands of houses, buildings, structures and dispossession of over 50,000 people. Therefore, as a consequence of various orders passed by the apex court relating to demolishment, an intervener application was filed by the petitioners.
Giving grounds for making the application for constitution of a larger bench or a full court to adjudicate the matter, the counsel said that the present application involves proceedings under Article 184(3), especially the suo motu proceeding. He highlighted that these also included fundamental and complex questions of constitutional and legal importance, especially those that related to fundamental rights and the smooth and efficient functioning of the entire judicial system.
He said: "Some of these fundamental and complex questions of constitutional and legal importance are, inter alia, as follows: Firstly, what are the jurisdictional and procedural parameters (i.e. scope, powers, limitations, rights and duties) in the exercise of jurisdiction under Article 184(3). Secondly, is there a criterion for the structuring of judicial discretion as to the choice of cases of public importance involving the enforcement of fundamental rights under Article 184(3)?”
The counsel said the legal grappling with these questions also raised questions about the parameters and the extent of due process rights of affected parties in the exercise of jurisdiction under the said article.
He questioned whether the scope of the exercise of review jurisdiction under Article 188, read with Order XXVI, Supreme Court Rules, 1980, was similar or different in relation to judgments and orders passed under Article 184(3), adding that this was also important due to the fact that the proceedings under the constitutional provision begin and end at the apex court without any remedy of appeal before any forum including the apex court.
“Fourthly, whether the Honourable Supreme Court can open and undo closed and past transactions as a result of previous judicial adjudications or interfere in proceedings pending before the relevant judicial forums including the honourable high courts? And if such undoing or interference is legally permissible then what are the parameters for exercising such jurisdiction under Article 184(3),” he added.
He said that it is most respectfully and most humbly submitted that the, inter alia, aforementioned fundamental legal questions have yet to be conclusively settled by the apex court through an authoritative judgment.
He said there has been a recurring public debate raising doubts about such proceedings under the said article in the public arena and opined that in order to avoid further public controversy and to further reinforce public confidence, the constitution of a larger bench or full court was needed.
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