After Justice Yahya Afridi, another apex court judge – Justice Qazi Faez Isa – has raised questions about the discretionary powers exercised by the Chief Justice of Pakistan (CJP) – a position currently held by Justice Gulzar Ahmed.
The CJP currently enjoys unfettered discretionary powers to constitute benches, “fix” cases and initiate public interest proceedings under Article 184 (3) of the Constitution.
Building a case against “unstructured discretion”, Justice Isa – in a letter written to Justice Gulzar Ahmed on February 10 – noted that the Supreme Court often castigates arbitrary exercise of discretion, yet while making benches hearing important constitutional matters unstructured discretion is exercised.
“If the Executive’s transgressions are not checked, and instead benches are reconstituted and judges restrained, the people suffer. To exclude senior judges from benches when important constitutional issues are to be heard neither serves the institution nor the people,” the judge said.
He said the Supreme Court is the final arbiter of all disputes and the custodian of the Constitution. It is tasked to ensure that the Executive does not overreach or act contrary to the Constitution.
"Incidentally, you (personally) know that [while working] as [a] counsel for twenty-seven years and as chief justice [of] the Balochistan High Court for over five years, constitutional work is what I mostly did.”
Justice Isa said the recurrent issue of unstructured discretionary powers has been left unattended by former CJPs and not taken up at full-court meetings. He also sent a copy of the letter to Justice Maqbool Baqar who is number five in terms of seniority among the Supreme Court judges.
In June 2020, Justice Yahya Afridi – while writing a dissenting note in Justice Isa case – observed that the apex court should be more careful while exercising its advisory and suo motu jurisdictions because no appeal could be mounted against its judgments and opinions on those matters.
“To maintain judicial discipline and to uphold the rule of law, there is an inherent and dire need for judicial introspection; to structure the unfettered discretion of the worthy Chief Justice of the Supreme Court to constitute benches of the Supreme Court to hear and decide cases under Article 184(3), and in particular, suo motu actions, lest the exercise of such jurisdiction may be seen to have been abused.”
Justice Afridi, however, observed that passing any definite findings on this crucial matter in the current petition would not only be swaying from the issue at hand but also, on many counts, would be premature, as the matter was already sub judice before the Supreme Court.
The judge noted that the scope and extent of the term “matters of public importance”, as provided under Article 184(3) of the Constitution, had been an issue of perennial deliberation of the top court.
“The judicial consensus reached is for the same to encompass any issue affecting the legal rights or liabilities of the public or the community by large, and it is not restricted to an individual or a group of individuals, how so large the group might be.”
There is an ongoing debate in the legal community about regulating the CJP’s powers to form benches as well as initiating public interest litigations. Lawyers believe that when the apex court regulates all functionaries’ discretionary powers then the same should be applied to the CJP’s unfettered powers.
The apex court tried to structure the CJP’s powers on judicial as well as administrative side but nothing so far has been finalized. The first full-court meeting was held on February 6, 2019 to deliberate on the issue but no apex court official was present during the two-hour session.
According to the minutes of the 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 were of the view that there was no consensus among the SC judges to regulate the public interest jurisdiction and giving right of appeal in suo motu cases through amending the SC rules.
In December 2019, former CJP Asif Saeed Khosa had shared with other apex court judges a draft of proposed amendments in the Supreme Court Rules 1980 to regulate suo motu power, exercised by the CJP to adjudicate public interest matters.
According to the draft, the CJP will take suo motu notice on any matter after consulting with two senior most judges. Later the matter will be referred to a bench that will examine the matter on the judicial side.
The bench's decision could be challenged through an Intra-Court Appeal (ICA), which will be heard by a larger bench. However, the fate of former CJ’s draft rules is not known.
After the lawyers' 2007 movement, the overuse or misuse of suo motu powers was widely criticized by the superior bars and major political parties except the ruling PTI. Both the PML-N and the PPP faced tough times due to use of suo motu powers and a number of politicians faced disqualification.
According to Article 225, no election dispute can be called into question except an election petition but the SC disqualified many lawmakers while exercising jurisdiction of quo warranto under Article 184 (3).
Former CJP Asif Saeed Khosa formed larger benches comprising senior most judges to hear public interest matters. However, the incumbent CJP is not carrying on this practice.
CJP Gulzar Ahmed did form larger benches in matters related to coronavirus, presidential reference case and maintainability of writ petition against administrative order of superior courts judges etc but Justice Isa and Justice Maqbool Baqar were not part of those benches
Previous dissenting note
In 2016, Justice Isa had also questioned former CJP Anwar Zaheer Jamali’s decision to form a larger bench to review his ruling in the houbara bustard case.
In his 14-page dissenting note, Justice Isa had raised questions about exclusion of Justice Dost Muhammad Khan from a larger bench.
Since the larger bench was specifically constituted to hear the review petition – he had noted – there was no point to exclude a member who had earlier heard the case.
Justice Isa also questioned if there was “an apparent error on the face of the record” in the judgment under review and why were the cases listed for hearing afresh. The larger bench had set aside the SC’s August 19, 2015 judgment.