Suo motu should reflect collective wisdom, observes Justice Isa

Justice Isa was speaking at a ceremony held to celebrate the golden jubilee of the 1973 Constitution

ISLAMABAD (Dunya News): Senior Supreme Court judge Justice Qazi Faez Isa says a wrong decision is wrong even if majority endorses it. "Two wrongs don't make a right," he quipped. 

Justice Isa was speaking at a ceremony held here on Wednesday to celebrate the golden jubilee of the 1973 Constitution. The theme is “Pakistan's Constitution as a Symbol of National Unity”. 

In a possible reference to the ongoing constitutional tussle regarding formation of bench on holding elections, he said “if a decision is wrong, it will remain wrong even if a majority endorses it. A lie cannot be turned into truth by a number game,” he observed. 

Justice Isa said the word 184(3) had been used in the Constitution, and not suo motu. "This article 184(3) empowers the Supreme Court with conditions to do something for the implementation of fundamental rights. This article secures those who cannot afford to hire services of a lawyer. This article has been used extensively in Pakistan, sometimes in good faith and sometimes bad." 

He said 184(3) could not be used to benefit an individual. "This article should be used in public interest. Extreme care should be taken while using this article," the justice declared.

“In my opinion, the authority to invoke 184(3) rests with the Supreme Court. My friends are of the opinion that the chief justice has the authority to take suo motu notice. There is also an opinion that if 184(3) is invoked, all the judges of the Supreme Court should hear it. Tell me under which article, I will be corrected and I will follow your theory,” Justice Isa observed.

Tracing the background of the wrong decision by the judiciary, he said the main reason for dismemberment of Pakistan was a wrong judicial decision. The justice opined that dismemberment of Pakistan was not a sudden incident, but its seeds were sown [way back in 1950s]. Justice Munir of the Federal Court sowed the seeds that broke the country through a wrong judicial decision. The poisonous seeds grew and the country was divided into two parts in 1971, he added.

Justice Isa said that what we do today, its consequences continue for centuries. Zulfikar Ali Bhutto was sentenced to death by one vote. 

"If you don't want history to repeat itself, then learn from the history. History has repeated itself many times to teach us – 1958, 1977, 1993 and 1999. History has taught us lessons seven times," he continued. The senior judge termed the Constitution a gift. 

Criticising dictators, Justice Isa said every dictator realised after some time that he was a democratic person. “The dictator [a possible reference to Gen Ziaul Haq] conducts a referendum and the results is 98%.” 

Unlike the referendum, the results of the general election in Pakistan never exceeded 60 per cent, he maintained. He said that despite the differences, the government and the PNA sat at the negotiation table and resolved the issues. But on July 4, 1977, one person seized power. On Oct 12, 1999, another government employee took over power. Musharraf's second strike was on Nov 3, 2007 when he imposed emergency.

The justice called himself an optimist. He said the judges were burdened by the Constitution "as we have taken an oath to defend and protect it". "Unless people understand the constitution, it will have no value."

He said every tyrant says my will, but the constitution says it’s will of the people. In a dynamic society, there are differences of opinion. If everyone starts nodding in support, then it will become a monarchy and a dictatorship.

Justice Isa said Article 58-2b was added to the Constitution to remove an elected government on one’s whim. The article was used and the self-picked government of Muhammad Khan Junejo was removed. The article was removed through 18th Amendment and provinces were empowered, he said.

He said “arrogance and ego are two worst traits. If you are sitting at a high position, you should not be egoistic. The day I will become egoistic, I will not be a judge. Ego has nothing to do with disagreement,” he concluded.