Judges can’t entertain documents ‘directly’

Acting CJP fears collapse of system if judges resorted to this practice


Hasnaat Malik August 26, 2021

ISLAMABAD:

Acting Chief Justice of Pakistan Umar Ata Bandial on Wednesday expressed apprehension that in case benches directly entertained documents, the whole system would collapse.

A five-judge larger bench of the apex court, headed by Justice Bandial, is examining as to how the suo motu jurisdiction should be invoked under Article 184 (3) of the Constitution.

The issue arose when an SC division bench led by Justice Qazi Faez Isa directly entertained an application against the alleged harassment of media personnel.

Justice Bandial noted that judges could not entertain documents directly and ask the parties to file them in the office, adding that the system was structured for this purpose.

He also observed that judges had taken an oath to protect and defend the Constitution. The acting CJP remarked that judges could not interfere in the substantive part of the order related to the grievances of the journalists’ community.

Justice Isa in his order on August 20 had noted that matter be fixed before the same bench for hearing on August 26.

However, an SC larger bench, led by Justice Bandial, on August 26 held in abeyance the two-judge bench order and issued notices to Attorney General for Pakistan Khalid Jawed Khan, Supreme Court Bar Association President Lateef Afridi and Pakistan Bar Council Vice Chairman Khush Dil Khan for legal assistance.

Subsequently, Justice Isa submitted a 15-page note to the apex court wherein he raised objection over the constitution of a larger bench to examine the invoking of suo motu jurisdiction. He termed the larger bench as a 'monitoring bench'.

During the hearing on Wednesday, Justice Qazi Muhammad Amin Ahmed asked the AGP that would it not be appropriate that the two judges -- namely Justice Isa and Justice Jamal Khan Mandokhail -- should also be included in the larger bench to adjudicate the legal question related to the invoking of suo motu jurisdiction.

The AGP agreed with the SC judge that Justice Isa and Justice Mandokhail should be included in the bench. However, the bench ignored this suggestion. Justice Bandial told the AGP to proceed into the matter.

Upon this, the AGP started his argument on the invoking of suo motu jurisdiction. He suggested that the larger bench should slightly amend the August 20 order by referring the matter to the CJP for the constitution of bench at an appropriate time.

However, Justice Amin asked that if a bench referred the matter to the CJP for constitution of a bench to proceed in suo motu case, whether or not its order would be binding on the top judge.

Upon this, he replied that the bench passed a judicial order which would be binding on the CJP.

However, the CJP has the discretion to form an appropriate bench to hear that issue at a relevant time, the AGP added.

The AGP in his submission stated that the past practice was that the court had demonstrated great flexibility and entertained information, letters etc. from any source if it warranted proceedings under Article 184(3).

However, the matter was heard by a bench after the approval of the CJP.

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"That being so, the question arises as to how benches are to be constituted to hear the matters falling under Article 184(3),” the AGP wrote in his submission.

“There being no permanent benches constituted by or under the Constitution or the Rules, the constitution of the benches and the matters to be heard by respective benches is to be done by the Hon’ble Chief Justice as he is the Master of the Court Roster. Order XI of the Rules, 1980,” he added.

The AGP also said that an even more compelling consideration which called for regulating the procedure for invoking the jurisdiction was that if individual parties or litigants were allowed to pick and choose benches of their preference, this could result in complete chaos, seriously undermining the system of administration of justice in the country.

"This may also result in allegations of nepotism and favouritism, which though will invariably be frivolous and unwarranted, yet it will shake the public confidence in the institution of judiciary."

The AGP referred to a circular dated July 19, 2005 to regulate suo motu proceedings.

He also explained as to how Justice Isa had entertained suo motu matters in the past.

The AGP in his written submission stated that the jurisdiction conferred under Article 184(3) being plenary and inquisitorial rather than adversarial in nature, and given our past experience, its frequent invocation called for caution.

"It needs to be invoked as well as exercised in a manner which lends credibility, certainty and consistency.”

The AGP noted that the court’s primary function being appellate and with an unprecedented and proliferating pendency exceeding 50,000 cases, it called for restraint in invoking this jurisdiction and leave it for exceptional cases where the high courts could not provide relief to the people or where there was a necessity to address the issue at the level of apex court given some most exceptional circumstances

"In order to lend credibility, certainty and consistency, all powers exercised and exercisable in the process ought to be based on objective criteria leaving minimum scope for use of discretionary powers and ensuing misperception that entails open ended authority and jurisdiction."

The APG noted that human rights petitions, a matter referred by a judge to the CJP, or a pending case either the SC on its own or on a petition or letter by a party -- falling within the ambit of Article 184(3) -- might in routine be placed before a bench of not more than two judges as per the roster and subject to administrative order of the top judge.

“The bench so constituted will decide whether further proceedings under Article 184(3) are warranted. If it is so held, the bench may frame legal questions and issue notices to the respondents and refer the matter to the Hon’ble Chief Justice for constitution of a five member bench for further hearing of the matter."

In all three scenarios, the AGP added, the CJP might form a special five member bench to finally hear and decide the petition under Article 184(3).

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