CJP Bandial sets aside Justice Isa-led bench ruling on suo motu powers
Pakistan
Three-member bench had ordered postponement of all suo motu cases till amendments to rules
ISLAMABAD (Dunya News) – Chief Justice of Pakistan Umar Ata Bandial on Friday set aside the observations made by a three-member bench of the apex court regarding powers of taking suo motu notices and constitution of special benches.
SC Registrar Ishrat Ali has issued a circular in this regard after a bench comprising Justice Qazi Qazi Faez Isa, Justice Aminuddin Khan and Justice Shahid Waheed issued a majority verdict of 2-1, ordering the postponement of cases being heard under Article 184(3) of the Constitution till the amendments made in the Supreme Court Rules 1980 regarding the discretionary powers enjoyed by the Chief Justice of Pakistan to form benches.
The three-judge bench issued the ruling in a suo motu case regarding the grant of 20 marks to Hafiz-e-Quran while seeking admission to MBBS/BDS degree. Justice Waheed wrote a dissenting note against the order, saying the points raised and discussed in the order were not relevant to the case.
The order said, “The interest of citizens therefore will be best served to postpone the hearing of this case, and all of the other cases under Article 184(3) of the Constitution till the matters are first attended to by making requisite rules in terms of Article 191 of the Constitution.”
The court further held that neither the Constitution nor the rules granted to the chief justice or the registrar, the power to make special benches, select judges who will be on other benches and decide the cases that they will hear. “Important matters, which arose out of Article 184(3) of the Constitution, were decided, with significant consequences on the economy, politics and on other aspects of the lives of Pakistanis,” the order said.
“With regard to Article 184(3) of the Constitution, the court held that there are three categories of cases. Firstly, when a formal application seeking enforcement of Fundamental Rights is filed. Secondly, when (suo motu) notice is taken by the Supreme Court or its judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second categories). Order XXV of the rules only attends to the first category of cases."
The order further said there was no procedure prescribed for the second and third category of cases, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3) of the Constitution.
“The Constitution does not grant to the chief justice unilateral and arbitrary power to decide the above matters,” the order said. “With respect, the chief justice cannot substitute his personal wisdom with that of the Constitution,” the order noted, adding that collective determination by the chief justice and the judges of the Supreme Court could also not be assumed by an individual.
Registrar's circular
The circular issued on Friday said, “With respect to the said order the HCJ has been pleased to observe as under:- The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the list before the Court and invokes its suo motu jurisdiction”.
“The unilateral assumption of judicial power in such a manner violates the rule laid down by a 5 Member judgment or this Court reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306).”
“Such power is to be invoked by the Chief Justice on the recommendation of an Hon'ble Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution,” reads the circular. It added that the three-judge bench’s majority judgment “therefore disregards binding law laid down by a larger bench of the Court”.
“Any observation made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded. Accordingly, a circular be issued by the Registrar slating the foregoing legal position for the information of all concerned," it concluded.
