Justice Qazi Faez Isa and Justice Aminuddin Khan, in a detailed order of the Supreme Court on Wednesday, noted that the chief justice of Pakistan (CJP) does not have the power to make special benches or decide its members, and said that all hearings based on suo motu notices and cases of constitutional significance — under Article 184(3) — should be postponed until they are legislated upon.

The two judges passed the order in a case pertaining to the 2018 regulation of the Pakistan Medical and Dental Council (PMDC) that suggested an award of 20 additional marks to candidates for memorising the Holy Quran by heart to get MBBS or BDS degrees.

The case was heard by the aforesaid judges as well as Justice Shahid Waheed — who dissented from their verdict and will write his separate opinion.

The order, a copy of which is available with Dawn.com, first questioned why the special bench comprising judges from three different benches was formed to hear the case. “The question arises, why couldn’t an existing regular bench hear this case? The record does not disclose the reason for the constitution of this special bench, nor do we know,” the order reads.

“Neither the Constitution nor the rules grant to the chief justice (or the registrar) the power to make special benches, select judges who will be on these benches and decide the cases which they will hear.

“There is also no additional, incidental, ancillary or residual power with the chief justice which could be used to do this. Yet, unfortunately, this is being done and sometimes with grave consequences. Important aspects with 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.”

At the order’s outset, the two judges said the Supreme Court Rules (1980) neither permit nor envisage special benches, adding that they did not know why a special bench was constituted for hearing their case and asked why a regular existing bench could not hear it.

Criticising special benches, the order said they provide detractors with the opportunity to claim the bench was “tailor-made to give a particular decision”.

“When benches are tailored and judges of a particular understanding or inclination are placed together to hear a particular case then doubts, suspicion and misgivings arise. A decision from an adjudicatory process which is perceived to be structured to obtain a particular decision invariably results in severe criticism.

“The matter assumes criticality when objections taken on the constitution of special benches and requests made for hearing by the full court are not attended to and no order disposing of such objections and requests is passed,” the order reads.

Postpones Article 184(3) cases

Regarding Article 184-3 (matter of public importance) of the Constitution, the order highlighted that it had three categories of cases: a formal application filed for enforcement of fundamental rights, a suo motu notice taken by the apex court and cases of “immense constitutional importance and significance”.

The two judges said that Order 25 of the Supreme Court Rules (1980) only catered to the first category of cases with no procedure ascribed for the second and third categories.

“The situation is exacerbated as there is no appeal against a decision under Article 184(3) of the Constitution. The rules also do not provide how to attend to the following matters: how such cases be listed for hearing, how bench/benches to hear such cases be constituted and how judges hearing them are selected.”

The order said the apex court, comprising the CJP and other Supreme Court judges, was empowered to make rules on the above matters and the Constitution “does not grant to the chief justice unilateral and arbitrary power to decide the above matters”.

The two judges said the CJP “cannot substitute his personal wisdom with that of the Constitution” and collective determination by the CJP and other apex court judges cannot also be assumed by an individual.

“The interest of citizens therefore will be best served to postpone the hearing of this case and of all other cases under Article 184(3) of the Constitution till the matters noted herein above are first attended to by making requisite rules in terms of Article 191 of the Constitution.”

Pemra ban on judicial criticism

The two judges also addressed the Pakistan Electronic Media Regulatory Authority’s (Pemra) prohibition on the broadcasting and rebroadcasting of content pertaining to the conduct of sitting high court and Supreme Court judges on electronic media, and criticised it.

The judges noted that the judiciary would be flawed if it was not “open to constructive criticism”, the people’s feedback could help to identify shortcomings and constructive criticism served the judiciary’s interest.

They termed the Pemra ban as a “gagging order” and said no reason was disclosed for its issuance. The order added that the “unsolicited media-gagging order brings the judiciary into disrespect and disrepute as citizens will assume that it has been issued on the direction of judges with a view to cover discrepancies, illegalities and/or blemishes.”

In a further damning indictment of the ban, the judges said: “Pemra’s complete prohibition to criticise judges offends the Constitution, law, morality and Islam.”

Growing debate over CJP’s powers

The detailed verdict comes two days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court had called for revisiting the power of the “one-man show” enjoyed by the chief justice, saying that the country’s top court could not “be dependent on the solitary decision of one man”.

The two had made the remarks in a detailed dissenting note — released on Monday hours after the apex court took up the PTI’s plea challenging the postponement of elections in Punjab — for the top court’s March 1 verdict regarding holding elections in Punjab and Khyber Pakhtunkhwa, where the two provincial assemblies have been dissolved.

The two judges said the suo motu proceedings regarding the provincial elections stood dismissed by a majority of 4-3 and contended that the CJP did not have the power to restructure benches without the consent of the respective judges.

Prime Minister Shehbaz Sharif had hailed the dissenting note as a “ray of hope” during his National Assembly speech and called for relevant legislation in its wake.

Earlier today, the National Assembly passed the Supreme Court (Practice and Procedure), Bill 2023, which aims to deprive the CJP office of powers to take suo motu notice in an individual capacity.

Notably, the bill legislated regarding some of the issues raised by Justice Isa and Khan about Article 184(3).

Regarding the constitution of benches, the bill passed by the National Assembly today after amendments states that every cause, matter or appeal before the apex court would be heard and disposed of by a bench constituted by a committee comprising the CJP and the two senior-most judges. It added that the decisions of the committee would be taken by a majority.

Regarding exercising the apex court’s original jurisdiction, the bill said that any matter invoking the use of Article 184(3) would first be placed before the abovementioned committee.

“If the committee is of the view that a question of public importance with reference to enforcement of any of the fundamental rights conferred by Chapter I of Part II of the Constitution is involved, it shall constitute a bench comprising not less than three judges of the Supreme Court of Pakistan which may also include the members of the committee, for adjudication of the matter,” the bill reads.

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