Will larger SC bench regulate CJP’s suo motu powers?

ISLAMABAD:

A five-judge larger bench of the Supreme Court led by Acting Chief Justice of Pakistan Justice Umar Ata Bandial is set to hear the journalists’ harassment case in a bid to provide clarity in respect of invocation of the apex court’s suo motu jurisdiction on Monday (today).

The larger bench was constituted on Friday after a two-judge bench led by Justice Qazi Faez Isa passed an order on an application requiring action against harassment of media personnel in Pakistan.
As the top court’s larger bench takes up the matter today, a debate has started whether the CJP's suo motu powers could be regulated or not.

Senior lawyers believed it would have been better if the acting CJP had included senior most judges in the bench. The other members of the bench include Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmad and Justice Muhammad Ali Mazhar.

A senior lawyer maintained that the acting CJP did not like the manner in which the division bench of the apex court had processed the complaint against harassment of media persons. The hearing of case was adjourned until August 26.

Earlier, during the tenure of Chief Justice Gulzar Ahmed, Justice Qazi Faez Isa had taken five notices on different matters like alleged illegal appointments of directors general in NAB, Premier Imran Khan’s address to Insaf Lawyers Forum at Convention Centre, allocation of billions of rupees to lawmakers by the premier and delay in elections of local governments.

Interestingly, Justice Isa referred all these matters to the chief justice for constitution of an appropriate bench. However, he did not refer the matter related to harassment of media personnel to the CJP and opted to proceed further. Justice Isa in his order said that the same bench would hear the case on August 26.

Justice Isa was also a part of the bench which had taken suo motu notice against Faizabad dharna by Tehreek-e-Labbaik Pakistan. The matter was proceeded by the same bench till the end.
A senior government official was also of the view that senior judges should have been included in the larger bench when a critical matter was being taken up. He believed that current composition of the bench would not send a good message to the public.

A senior lawyer asked if a judge while exercising suo motu jurisdiction cannot go against the “established practice” then how the CJP could use same jurisdiction against rules and regulations.

Another lawyer believed that formation of a larger bench to examine the judicial order would be a dangerous precedent and may have far- reaching consequences in future. He wondered why the larger bench was in a haste to examine the judicial order.

A lawyer questioned whether the larger bench wanted to stop Justice Isa from initiating suo motu proceedings without the consent of the CJP.

A section of apex court judges believed that the CJP was “master of roster”, therefore, he only had the authority to form a bench on any issue. Likewise, it was learnt that a circular was issued during the tenure of former chief justice Iftikhar Muhammad Chaudhry that suo motu proceedings would be initiated by the CJP only.

All Pakistan Lawyers Representatives Convention also resolved that the discretionary powers of CJP, especially the exercise of suo motu jurisdiction, must be regulated.

A senior bar representative revealed that superior bars were considering vigorously raising the matter regarding the regulation of CJP’s “unfettered powers”. He said issues arose due to the use of discretionary powers by CJP in different matters.

The CJP currently enjoys unfettered discretionary powers to constitute benches, “fix” cases and initiate public interest proceedings under Article 184 (3) of the constitution.

Likewise, being the chairman of Judicial Commission of Pakistan (JCP) as well as Supreme Judicial Council, the CJP has vast discretionary powers in the process regarding judges appointments and their removal under Article 209 of constitution.

Since 2012, the Pakistan Bar Council (PBC) had been demanding that the JCP rules should be amended to end the unfettered powers in the process of the judges appointment. Similarly, there is an absence of mechanism regarding entertaining of complaints against superior court judges.

For instance, several complaints of misconduct were filed against former chief justice Saqib Nisar during his tenure but none of them were reviewed.

For some time now, even top court judges had been raising their voice for the regulation of discretionary powers of the CJP. Building a case against “unstructured discretion”, Justice Qazi Faez Isa – in a letter written to Justice Gulzar Ahmed on February 10 – noted that the Supreme Court often castigated arbitrary exercise of discretion yet unstructured discretion was exercised during hearings by benches on important constitutional matters.

“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 noted in his letter.

He said the Supreme Court was 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 added that the recurrent issue of unstructured discretionary powers had 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 October 2020, Justice Yahya Afridi – while writing a dissenting note in the 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,” the note read.

However, he observed that passing any definite findings on the 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,” said Justice Afridi.

On the other hand, Justice Umar Ata Bandial and Justice Munib Akhtar in their rulings observed that it was for the CJP – as the "master of the roster" – to determine the composition of a bench “and he may, for like reason, constitute a larger bench for hearing the review petition.”

In another case, both judges held that the CJP was not bound to form a larger bench on the proposal of minority judges’ view. However, Justice Manzoor Ahmad Malik, who retired in May, observed that the term “master of roster” could not be understood to mean that the chief justice of the country had unfettered discretion regarding constitution of benches.

He said the discretion vested in the office of the chief justice for constitution of benches was to be exercised in a structured manner according to the Supreme Court Rules SCR.

Lawyers believed when the apex court regulated all functionaries discretionary powers then the same should be applied to the CJP’s unfettered powers.