In an extraordinary situation, the Supreme Court (SC) larger bench headed by Justice Umar Ata Bandial on Monday held in abeyance the order of a division bench on an application against media persons' harassment.
Justice Qazi Faez Isa was heading the two-member bench which summoned several government functionaries regarding media persons’ protection.
The court has noted that the August 20 order passed by a division bench led by Justice Isa, prima facie, makes a departure from the norms of the applicable procedural practice.
The larger bench also issued notices to the attorney general for Pakistan (AGP), Supreme Court Bar Association (SCBA) president, and Pakistan Bar Council (PBC) vice chairman for legal assistance in regards to how the suo motu matter should be entertained.
Other four members of the larger bench are justices Ijazul Ahsan, Munib Akhtar, Qazi Muhammad Amin Ahmed and Muhammad Ali Mazhar.
The bench also raised questions on the manner in which suo motu was taken by a division bench led by Justice Isa regarding media protection.
"There is a settled practice of this court regarding the entertainment of suo motu actions on the recommendation made by benches of the court during judicial proceedings pending before them.
This case is different because no judicial proceeding was pending before the learned bench on August 20, 2021, regarding the grievances or concerns of journalists. Rather the order was passed on a fresh unregistered application handed over and entertained in court," a four-page written order says.
The bench noted that the original constitutional jurisdiction of the court under Article 184(3) read with its powers under Article 187 of the Constitution of Islamic Republic of Pakistan (Constitution) is invoked under a procedural scheme that lends credibility, certainty, and consistency to the substantive proceedings that follow in the exercise of that jurisdiction.
"The court has a discernible settled practice regarding the procedural issue of how suo motu motions may be entertained by the court."
However, the larger bench noted that in contrast, the August 20 order, prima facie, makes a departure from the norms of the applicable procedural practice.
"Taking into account the distinction between the invocation of the jurisdiction of the court on the one hand and the exercise thereof on the other, the question arises that how is the suo motu jurisdiction of the court under Article 184(3) of the Constitution to be invoked?"
Read: SC constitutes five-member larger bench to hear journalists' harassment case
The order said that in the light of the answer to this question the propriety, manner, and extent to which the order dated August 20, 2021, can be implemented by the office is another question that needs to be addressed.
"We would like to hear the principal stakeholders who are called upon to assist the court in matters of jurisdiction and law, namely, the AGP, the SCBA president, and the Pakistan Bar Council vice-chairperson.
"We would also invite the assistance of the learned counsel of the applicant journalists who has brought their grievance to the court. However, it must be borne in mind that notwithstanding an important question raised before the court by the applicant journalists, we are neither in a position nor intend to consider their substantive grievance in the exercise of our suo motu jurisdiction at this stage."
The order said that the only aspect of the case that is presently under our consideration is the manner and procedure whereby the suo motu jurisdiction is to be invoked and in particular whether, and if so how, such action may be initiated at the instance or on the recommendation of a bench of this court.
The court also said that at the moment, the judicial order dated August 20, 2021, directing notice to and reports from several federal government authorities is in the field.
"On account of the question now before the court which goes to the root of the jurisdiction, it is inappropriate to implement the said order because that may obscure and unsettle the practice of the court for invoking its suo motu jurisdiction resulting in needless uncertainty and controversy with attendant consequences. Therefore, the resolution of the question raised before this court at an early date is essential. Accordingly, the parties and the learned law officer named above shall come prepared with their submissions on August 25, 2021. Meanwhile, the order of the learned two-member bench dated August 20, 2021, shall remain in abeyance," the order says.
During the hearing, Supreme Court Bar Association (SCBA) President Lateef Afridi appeared before the bench, saying that lawyers feel that there is division in the apex court.
“We want a united Supreme Court,” he added.
However, Justice Bandial remarked that there is a difference of opinion among SC judges but there are no differences.
“However, with your [SCBA President] satisfaction, we will sit together,” Justice Bandial said.
Afridi also requested the bench to form a full court to hear this matter. Justice Bandial said that all judges are not available during the current week.
The judge noted that according to the division bench's direction, the same bench would hear the journalists’ protection case on August 26 but that bench is not available, adding that they want to protect the rights of the journalists in accordance with the law.
Justice Bandial also questioned whether the applicant could approach the bench directly. The hearing of the case is adjourned until Wednesday.
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