CJ takes his first suo motu notice on corona crisis

Move comes after Justice Gulzar expressed displeasure over govt’s anti-virus steps

ISLAMABAD: Chief Justice of Pakistan Justice Gulzar Ahmed has taken his first suo motu notice since assuming the charge as the country’s top judge on the situation arising out of the coronavirus crisis and the steps being taken by the federal government to curb its spread.

A five-member larger bench, headed by the chief justice, fixed the hearing of the case on April 13, according to a cause list issued by the apex court on Friday.

The development came after Justice Gulzar had expressed displeasure over the federal government’s measures to curb the coronavirus spread.

“The government is just calling in meetings whereas no work is being done on the ground,” he had remarked while hearing a petition filed against the Islamabad High Court (IHC) verdict in regard to releasing under trial prisoners (UTPs) in view of COVID-19 fears.

He also slammed the government’s decision to shut down health facilities for people suffering from ailments other than the global pandemic by closing out-patient departments (OPDs) in all hospitals across the country in the wake of the coronavirus outbreak.

Meanwhile, advocate Usama Khawar who had earlier filed a constitutional petition on the same issue wondered why his petition was not fixed for hearing.

Incumbent CJ's predecessor – Justice Asif Saeed Khosa -- did not use his suo motu powers during his entire tenure and had proposed amendments to the Supreme Court Rules 1980 to regulate suo motu power, which can only be exercised by the chief justice under existing laws to adjudicate public interest matters.

The draft was shared on December 12, 2019 in a full-court meeting of the Supreme Court.

According to the draft, the chief justice will take suo motu notice on any matter after consulting with two senior-most judges of the apex court and subsequently, the matter will be referred to a bench that will examine the matter on judicial side.

The bench’s decision could be challenged through an Intra Court Appeal (ICA), which will be heard by a larger bench.

On January 17, the former chief justice in his first speech had said that an effort “shall be made – either through a full-court meeting or through a judicial exercise – to determine and lay down the scope and parameters of exercise of the original jurisdiction of this court under Article 184(3) of the Constitution”.

“And, if deemed appropriate, to carve out the scope of an Intra-Court Appeal in such matters through an appropriate amendment of the Supreme Court Rules or to suitably amend the provisions relating to review jurisdiction so as to enlarge its scope in such cases,” he had said.

The first full-court meeting was held on February 6 this year to deliberate on the issue.

According to the minute of that meeting, it was resolved that “the issue of exercise of jurisdiction under Article 184(3) of the Constitution was discussed threadbare from all possible angles and it was affirmed that such jurisdiction will be exercised in accordance with the Constitution”.

Senior lawyers say that during the tenure of Justice Khosa as the chief justice of Pakistan, a consensus could not be reached on regulating the public interest jurisdiction and giving right of appeal in suo motu cases through amending the top court’s rules.

They say that the big challenge, however, is to evolve a consensus among the Supreme Court judges, who have had a different approach in exercising public interest jurisdiction in the past.

It is debatable whether all judges will be unanimous in structuring the chief justice’s discretionary powers in initiating public interest litigation.

The country is still struggling due to judicial interference by his predecessors in commercial deals.

Since the lawyers’ movement of 2007, former chief justices have adopted different approaches what is known in the media as judicial activism.

In 2009, the superior judiciary led by the then chief justice Iftikhar Chaudhry initiated public interest litigation for enforcement of fundamental rights.

Later, former chief justice Saqib Nisar further reinforced judicial activism. However, former chief justices – Tassaduq Hussain Jillani, and Anwar Zaheer Jamali –used suo motu power sparingly.

Former chief justice Nisar ul Mulk didn't take any suo motu notice during his tenure. Likewise, the Supreme Court’s human rights cell was not active during the period of former chief justice Khosa.

Now, after the passage of one year, Chief Justice Gulzar has taken his first suo motu notice on the coronavirus crisis in the country.

Meanwhile, Advocate Usama Khawar, who had filed a constitutional petition on the same issue, wondered why the top judge has taken suo motu on the issue instead of fixing his plea for hearing.

“Suo motu are taken when no petition is listed for hearing in the Supreme Court or the court is compelled to initiate action on its own.”