ISLAMABAD: The Constitution does not grant unilateral and arbitrary power to the country’s top judge to list cases for hearing, form special benches and select judges, Justice Qazi Faez Isa of the Supreme Court observed on Wednesday.

He proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the chief justice of Pakistan’s (CJP) discretionary powers to form benches.

“With respect, the Chief Justice cannot substitute his personal wisdom with that of the Constitution,” Justice Isa said in his remarks, part of a 12-page judgement he authored.

“Collective determination by the Chief Justice and judges of the Supreme Court can also not be assumed by an individual, albeit the Chief Justice,” he said.

Justice Isa was heading a three-judge special bench, which was formed by CJP Bandial, to hear a suo motu case related to the award of an additional 20 marks to candidates for memorising the Holy Quran by heart to get an MBBS or BDS degree.

Say CJP doesn’t have arbitrary power to form special benches

“It would be in the best interest of citizens if the hearing in the present case is postponed and of all other cases under Article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of Article 191 of the Constitution,” Justice Isa wrote.

The other two judges on the bench were Justice Aminuddin Khan and Justice Shahid Waheed. However, Justice Waheed disagreed with the judgement and will write a separate dissenting note.

During the last hearing on March 15, Justice Isa questioned the constitution of the special bench to hear the matter.

Referring to Article 184(3), Justice Isa explained in the latest verdict that there were three categories of cases. First, when a formal application seeking enforcement of the fundamental rights was filed; second, when suo motu notice was taken by the Supreme Court or its judges; and third, when there are cases of immense constitutional importance and significance, which may also be those in the first and second categories.

Order 25 of the Supreme Court Rules 1980 only attended to the first category of cases and there was no procedure prescribed for cases in the second and third categories, Justice Isa observed, adding that the situation was exacerbated as there was no appeal against a decision under Article 184(3).

He noted that neither the Constitution nor the rules grant the chief justice or the registrar the power to make special benches, select judges who will be on these benches and decide the cases that they will hear.

He said the Latin term suo motu — relating to an action taken by a court of its own accord, without any request by the parties involved — “does not find mention in the Constitution”.

“A practice which is not sanctioned does not supplant the Constitution, no matter the duration for which it has been practised,” Justice Isa said.

“We must remind ourselves of the oath that we take, which is to (a) act in accordance with the Constitution and the law, (b) abide by the code of conduct, (c) not let personal interest influence decisions, (d) do right by all people and (e) to preserve, protect and defend the Constitution,” Justice Isa said.

Published in Dawn, March 30th, 2023

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