CJP ‘disregards’ order issued by Justices Isa, Aminuddin calling for postponement of suo motu matters

Published March 31, 2023
Chief Justice of Pakistan Umar Ata Bandial. – Photo courtesy Supreme Court/File
Chief Justice of Pakistan Umar Ata Bandial. – Photo courtesy Supreme Court/File

Chief Justice of Pakistan (CJP) Umar Ata Bandial on Friday “disregarded” a judgement issued by Justice Qazi Faez Isa and Justice Aminuddin Khan of the Supreme Court, in which they had called for the postponement of suo motu matters until amendments were made to Supreme Court Rules 1980 regarding the country’s top judge’s discretionary powers to form benches.

In a judgement issued earlier this week, Justice Isa and Justice 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.

Justice Isa 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. Justice Shahid Waheed, the bench’s third member, dissented with the view.

The order was passed for a suo motu case about 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.

In a circular issued by SC Registrar Ishrat Ali today, a copy of which is available with Dawn.com, the CJP said that the observations made by Justice Isa and Justice Khan in paragraphs 11 to 22 and 26 to 28 of the judgement “travel beyond the lis before the court and invokes its suo motu jurisdiction”.

He observed that the “unilateral assumption of judicial power in such a manner” was a violation of rules laid down by a five-member judge reported as the “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 Honourable Judge or a learned Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution.

“The said majority judgment, therefore, disregards binding law laid down by a larger bench of the Court,” Justice Bandial said in the circular.

He added that any observation made in the judgement issued by Justice Isa and Justice Khan for the fixation or otherwise of cases should also be disregarded.

“Accordingly, a circular be issued by the Registrar stating the foregoing legal position for the information of all concerned,” the CJP concluded.

Growing debate over CJP’s powers

The SC circular 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. Yesterday, the bill was also passed by the Senate amid a protest by the 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 would 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.

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