ISLAMABAD: The Pakistan Bar Council (PBC) has reiterated its demand for framing of rules by the Supreme Court for regulating the exercise of powers under Article 184(3) of the Constitution by the top court.

A meeting presided over by Attorney General (AG) Anwar Mansoor as chairman of the council also constituted a special committee comprising the AG, PBC vice chairman Kamran Murtaza and the chairman of the executive committee to call on Chief Justice Mian Saqib Nisar at the earliest and request him for consideration of the demand, Mr Murtaza told Dawn.

The council in a resolution suggested that in case the matter was fixed on the judicial side, the Supreme Court should consider constituting the full court consisting of all its17 judges.

Committee set up to meet chief justice for consideration of demand

It also passed a resolution asking Law Minister Farogh Naseem to resign as a member of the council since being the minister he cannot practise as a lawyer under PBC rules.

When this resolution was being adopted, senior counsel Raheel Kamran She­ikh abstained, whereas Tahir Nasser­ullah Warraich — another member of the PBC — left before voting. Maqsood Butter and Shafiq Bhandara opposed the motion whereas nobody from the opposition participated in the meeting.

The resolution regarding framing of rules for Article 184(3) was adopted on a letter written by Raheel Kamran Sheikh to the members of the council arguing that the article was as much a source of power as dispensation of justice in relation to the enforcement of fundamental rights, which usually have more than one interpretation on the scope and limits of the rights sought to be enforced in any matter.

The manner in which it has been used in the last one decade provides ample evidence that it is a vital source of empowerment of the court vis-à-vis other organs of the state, the letter said.

Exercise of Article 184(3) had always been in debate and in September Chief Justice Mian Saqib Nisar had expressed his intention of determining the jurisdiction exercised under Article 184(3) to regulate the powers of the court. Then the court had taken up a case relating to the scope of the article that empowers the top court to initiate suo motu proceedings on matters it considers against the law.

The frequent use of suo motu powers by retired Chief Justice Iftikhar Mohammad Chaudhry 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. The lawyers were of the view that the excessive use of Article 184(3) under the public interest litigation could seal the fate of the aggrieved party, especially when an altogether different issue cropped up in collateral proceedings and a totally different aspect was brought to the notice of the court.

The letter stated that it was historically established that such a power had been exercised and used to substantially undermine the doctrine of dichotomy of powers and for intrusion in the affairs of other organs of the state, particularly the executive, for the judicialisation of politics and used as an alternative to the writ of quo warranto exercise.

The letter contended that historically speaking, hearings in most cases under Article 184(3) have been conducted by the bench headed and constituted by the chief justice meaning thereby that the views of the top judge virtually dominate the interpretation vis-à-vis the nature, scope and limits of the fundamental right.

It highlighted that there was no right of appeal provided against any order, judgement or decision under Article 184(3).

Published in Dawn, December 2nd, 2018