ISLAMABAD: Senior puisne judge of the Supreme Court, Justice Qazi Faez Isa has said that judges may differ on suo motu powers, but these differences can be settled through academic discussion as they are not sitting in an arena.

Addressing students and academicians at a local university on Wednesday, Justice Isa pointed out that so far the judges have interpreted Article 184(3), that empowers the Supreme Court to initiate suo motu proceeding in three ways.

According to one interpretation, the chief justice alone can take suo motu notice, another interpretation says a full court can take a decision in this regard, while the third one was mentioned by Justice Isa in detail.

He said since Article 184(3) did not mention the designation of chief justice, and it stated “the Supreme Court shall, [as] it considers that a question of public importance with reference to enforcement of fundamental rights conferred by Chapter I of Part II is involved, have the power to make an order”.

Justice Isa says SC, not CJP alone, has powers of issuing order in suo motu cases

He said Constitution gave the right to take suo motu notice to the Supreme Court.

According to Justice Isa, Article 184(3) was incorporated in the Constitution to safeguard the rights of the bonded labour, brick-kiln workers, poor women and those who cannot even approach a lawyer rather than filing a suit before a court.

He termed it an unfortunate that the said law has been used excessively over the last few years.

Justice Isa explained that unlike routine cases that reached the Supreme Court from trial courts, the SC turned into a trial court in suo motu proceeding with no right to appeal.

“Therefore, in my opinion, such cases must be dealt with utmost care,” he said.

Recently, the Supreme Court suspended the pending law “the Supreme Court (Practice and Procedure) Bill, 2023” that provided for a panel in suo motu cases comprising three judges headed by the chief justice who will be empowered to take suo motu notice. Since there is no such provision in suo motu cases, the proposed law provides for right to appeal by allowing intra-court appeal.

The then chief justice Asif Saeed Khan Khosa while addressing his full court reference on Dec 20, 2019 said, “A working paper containing some proposed amendments to the Supreme Court Rules, 1980 so as to regulate suo motu exercise of this Court’s jurisdiction under Article 184(3) of the Constitution and to provide for an Intra-Court Appeal in that respect has been presented before the Full Court and the same is under active consideration”.

However, a full court meeting could not be convened so far to frame the rules on suo motu.

Though Justice Isa did not comment on the suo motu proceeding and split decision in the provincial elections case, he did say that the matter which could be decided at appropriate forum could not be taken up under Article 184(3).

Recalling events from Pakistan’s political history, Justice Isa said judiciary paved the way for dictatorship that led to fall of Dhaka.

He said a dictator created a constitution that suited him while another incorporated Article 58(2)(b) to dismiss the elected prime ministers.

He also criticised the late dictator Gen Pervez Musharraf, saying for toppling the elected regime on Oct 12, 1999, another government official thought that there was no one better than him so he [invoked] proclamation of emergency and also imposed emergency on Nov 3, 2007.

Justice Isa said that parliament through the 18th Amendment endeavoured to restore the 1973 Constitution.

He said Constitution was not just for the judges but for people of Pakistan, and urged the legal fraternity to learn from the lessons of the past.

Separately, Chief Justice of Pakistan Umar Atta Bandial and Chief Justice of AJK Raja Saeed Akram Khan congratulated the parliament over golden jubilee of the 1973 Constitution.

According to a statement issued by the National Assembly, Justice Bandial in his letter to the speaker on April 10, regretted being unable to attend the occasion due to court obligations, but expressed his hope that parliament would keep guiding the nation towards progress through sound legislation.

Published in Dawn, April 20th, 2023