CJP’s nod no substitute for SC order: Justice Isa

'Apex court should satisfy itself that the jurisdiction it is assuming is in line with the Constitution'

Hasnaat Malik May 12, 2018
Justice Qazi Faez Isa. PHOTO: NNI

ISLAMABAD: Supreme Court judge Justice Qazi Faez Isa has raised serious questions over the manner in which public interest litigations were initiated by the Human Rights Cell of the top court.

In a three-page note, the judge stated that the constitutional powers granted to the Supreme Court could not be assumed by the Human Rights Cell director, adding that the Chief Justice’s approval was also not a substitute for a Supreme Court order.

According to Justice Isa, before exercising its original jurisdiction, the apex court should satisfy itself that the jurisdiction it is assuming is in line with the Constitution.

The judge observed that Article 184(3) of the Constitution granted to the Supreme Court the power to make an order of the nature mentioned in Article 199 of the Constitution: If “the Supreme Court…considers that a question of public importance with reference to the enforcement of any of fundamental rights conferred by Chapter I Part-II is involved”.

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He said once the SC was satisfied that these conditions (public importance and fundamental rights) were involved, then the question of enforcement of the relevant fundamental rights arise.

Justice Isa also noted that the director wrote similar notes, also dated April 12, 2018, in cases with serial numbers 3, 4 and 5 of the List (HRC Nos 14960-K of 2018, 14962-K of 2018 and 14964-K 2018, respectively). The files of these cases and of those listed at serial numbers 6, 7 and 8 of the List (HRC Nos. 16549-K/2018, 18200-K/2018 and 18879-K/2018) did not either indicate that the Supreme Court had satisfied itself that the above mentioned conditions had been met.

He also expressed serious concern over the dissolution and reconstitution of a bench by Chief Justice Mian Saqib Nisar at the SC’s Peshawar Registry on May 8.

When the three-judge bench of the apex court, headed by the CJP and comprising Justice Isa and Justice Syed Mansoor Ali Shah, resumed the hearing of cases at Peshawar registry on May 8, a number of public interest matters were listed.

The incident took place at the SC's Peshawar registry earlier when the special bench was formed to hear the case pertaining to the hospital wastes, the dissolution and reconstitution of bench has given rise to many concerns to the judge.

The bench took up first case related to the infectious hospital wastes in Peshawar, whose file consisted of two pages, which was initiated by the director of the top court’s Human Rights Cell.

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Due to complete lack of material on file and to understand the genesis of the case, Justice Isa had inquired at that time if the director was present in court so that the bench could examine the file (if any) containing the material (if any) on the basis of which he had written the note, and whether the original jurisdiction of the Supreme Court under Article 184(3) of the Constitution could be invoked.

He asked Advocate General Khyber-Pakhtunkhwa Latif Yousafzai, who was standing at the rostrum, to read Article 184(3).

Justice Isa wrote in his note, “However, before Article 184(3) could be read, the Chief Justice intervened and said he would be reconstituting the bench and suddenly rose up.

“The bench was then presumably reconstituted … I say presumably because no order was sent to me to this effect. However, a two-member bench did assemble later, from which I was excluded. This for me is a matter of grave concern.

“In my humble opinion it is unwarranted and unprecedented to reconstitute a bench in such manner, while (it was) hearing a case. To do so undermines the integrity of the system and may have serious repercussions.

“I am constrained to write this as not doing so would weigh heavily on my conscience and I would be abdicating my responsibility as a judge.”

Commenting on the matter, Pakistan Bar Council (PBC) Vice Chairmen Kamran Murtaza said it appeared things were irreversible and the situation within the judiciary was worsening.

He said the SC should consider PBC’s recent resolution for restructuring suo motu powers, adding that a full court meeting should be summoned for sorting out such matters in an amicable manner. But, Murtaza said that the SC should respect difference of opinion.

Former PBC vice chairman Ahsan Bhoon said that constitution of a bench was the chief justice’s discretion, adding that judges should avoid giving such opinions.

This, he said, would not only damage the institution, but the situation could also be manipulated by the top court critics.

Its not his first note as he expressed similar views in houbara bustard case when he had questions the Constitution of bench by former CJP Anwar Zaheer Jamali


Justice | 6 years ago | Reply Speedy justice without due process?
Fayyaz | 6 years ago | Reply According to most lawyers, a criminal case cannot be time barred. Yet Qazi Faiz ruled against opening of the case against Ishaq Dar, in the money laundering case in which he had admitted in his confessional statement. He also ordered NAB lawyer not to refer to Supreme Court judgement- an unusual order. Unfortunately he will be the CJ after a few years.
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