Justice Shahid Waheed of the Supreme Court, in a minority ruling on Thursday, said that judges could not raise objections regarding the constitution of benches, adding that if they do so they would become a complainant and it would no longer be appropriate for them to hear the case.
He made the remarks in a dissenting note for a suo motu case pertaining to 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.
Justice Waheed was part of the three-judge special bench that heard the case. A day earlier, the other two members of the bench, Justice Qazi Faez Isa and Justice Aminuddin Khan, held that the Constitution did not grant unilateral and arbitrary power to the chief justice of Pakistan (CJP) to list cases for hearing, form special benches and select judges.
“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.
He proposed that cases under Article 184(3) of the Constitution be postponed until amendments were made to Supreme Court Rules 1980 regarding the CJP’s discretionary powers to form benches.
However, Justice Waheed had disagreed with the judgement.
In a separate five-page dissenting note, a copy of which is available with Dawn.com, Justice Waheed said that the case at hand merited the bench to pass a “regulatory order”.
He noted that the attorney general had asked for an adjournment in order to file a concise statement, while the PMDC had told the court that the regulation in question had been withdrawn and asked for time to bring it on record.
“So, in my view, the requests for adjournment alone were to be considered by the bench, and our order ought to have been confined to it. This means a regulatory order was to be passed. On the contrary, I find that the said requests have been left unattended but certain other points have been discussed in the order which has led me to record this dissenting note,” he said.
Justice Waheed said the first point to be examined was whether the “objection to the constitution of this bench could be brought under consideration in this case”.
“I think it cannot for two reasons. One, a bench, special or regular, is constituted by an administrative order of the hon’ble chief justice, and as such, the present bench […] has been lawfully constituted to hear this case.
“It is to be noted that judgment in the suo motu case no.4 of 2021 is of a five-member bench and thus, takes precedence over all precedents of this court regarding the power of the Hon’ble chief justice to constitute any kind of benches.”
He noted that neither the attorney general nor the PMDC’s counsel had any objections regarding the constitution of the bench hearing the case.
“Given these circumstances, in my humble view, none of the judges of this bench can object to the constitution of the bench, and if they do so, their status immediately becomes that of the complainant, and consequently, it would not be appropriate for them to hear this case and pass any kind of order thereon.
“This reasoning has the backing of the basic code of judicial ethics, to wit, no man can be a judge in their own cause. It is important to state here that this principle confines not merely to the cause where the judge is an actual party to a case, but also applies to a case in which he has an interest.”
He argued that judicial propriety stated that if any judge of the bench had any objection, they would either recuse themselves of refer the matter to the CJP so that the case could be assigned to another bench.
Justice Waheed also said that the “administrative order of the hon’ble chief justice regarding the constitution of the bench becomes fait accompli when a judge in compliance thereof starts hearing the case”.
“Hence, any member of this bench, after having accepted the administrative order of the hon’ble chief justice, is estopped to question the constitution of the bench on the well known doctrine of estoppel (the principle which precludes a person from asserting something contrary to what is implied by a previous action or statement or by a previous pertinent judicial order)”.
The judge 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, which was criticised by the other two members of the bench.
He stated that the question was not “agitated” by any lawyer but brought under discussion by a senior member of the bench while copies of the prohibition order were also presented to the rest of the bench, the attorney general and the PMDC’s counsel by the judge’s clerk.
“Although much can be said on this question, it suffices to say that it would be otiose to discuss it here as it was neither urged by any counsel nor was it raised in the pleadings. In fact, no party was on notice to address on this question.
“Pemra was also not in attendance to present the rationale of the prohibition order. Therefore, in my view, the principle of fairness obliges us not to express a definite opinion on this question until all concerned have had an opportunity of being heard.”
The judge further said that another reason why he did not endorse the observations of the other two members of the bench was because “I hold the view that no court should try any question and also pass order thereon which is not directly and substantially in issue in a case pending before it”.
“In the case at hand, the matter in issue is whether the memorisation of the Holy Quran is a relevant criteria for the determination of the candidates for an MBBS or BDS degree. Indubitably, the above-stated second question is not related to the issue involved in this case, and thus, it cannot be brought under debate, nor can any conclusion be drawn thereon.”
He said that the appropriate order would be to allow the attorney general and the PMDC to file their respective concise statement before the next hearing.
Growing debate over CJP’s powers
The dissenting note comes days after Justice Syed Mansoor Ali Shah and Justice Jamal Khan Mandokhail of the Supreme Court called for revisiting the power of the “one-man show” enjoyed by the CJP, 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.
On Wednesday, 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. Earlier today, the bill was passed by the Senate amid a protest by opposition.
The bill 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.
On matters where the interpretation of the Constitution is required, the bill said the abovementioned committee would compose a bench comprising no less than five apex court judges for the task.
Regarding appeals for any verdict by an apex court bench which exercised Article 184(3)‘s jurisdiction, the bill said that the appeal will lie within 30 days of the bench’s order to a larger Supreme Court bench. It added that the appeal would be fixed for hearing within a period not exceeding 14 days.
It added that this right of appeal would also extend retroactively to those aggrieved persons against whom an order was made under Article 184(3) prior to the commencement of the Supreme Court (Practice and Procedure), Bill 2023, on the condition that the appeal was filed within 30 days of the act’s commencement.
The bill additionally said that a party would have the right to appoint its counsel of choice for filing a review application under Article 188 of the Constitution.
Furthermore, “an application pleading urgency or seeking interim relief, filed in a cause, appeal or matter, shall be fixed for hearing within 14 days from the date of its filing”.
The bill said that its provisions would have effect notwithstanding anything contained in any other law, rules or regulations for the time being in force or judgement of any court, including the Supreme Court and high courts.