Only CJP can take suo motu notice, rules SC

Larger SC bench recalls order against media persons

ISLAMABAD:

In an unprecedented way, the Supreme Court's larger bench on Thursday recalled its two-member order regarding harassment of media persons by state institutions.

The court also held that Chief Justice of Pakistan (CJP) is the “sole authority by and through whom the suo motu jurisdiction can be, and is to be, invoked/assumed” under Article 184 (3) of the Constitution.

A division bench of the apex court comprising Justice Qazi Faez Isa and Justice Jamal Khan Mandokhail on August 20, directly entertained Press Association of Supreme Court (PAS) application against harassment of media persons by state agencies.

The division bench also summoned several government functionaries on August 26 before it. Interestingly, both the judges belong to the province of Balochistan.

On August 23, a five-judge larger bench of the apex court, headed by Acting Chief Justice of Pakistan Umar Ata Bandial and comprising Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Qazi Muhammad Amin Ahmed and Justice Muhammad Ali Mazhar, “held in abeyance” the two-member bench order as its deviation from established practice of entertaining suo motu notice.

The larger bench also posed a question of whether the suo motu jurisdiction could be invoked under Article 184 (3) of the Constitution. Notices were also issued to attorney general for Pakistan, Supreme Court Bar Association president and Pakistan Bar Council vice chairman for legal assistance. However, the bench ignored their contentions.

The larger bench while announcing the order said that for detailed reasons to be recorded later and subject to what is set out therein by way of amplification or otherwise: it is declared that the invocation/assumption of the suo motu jurisdiction of this court under Article 184(3) of the Constitution is based on, and shall be guided by, the following principles.

Firstly, the court declared that the CJP is the sole authority by and through whom the said jurisdiction can be, and is to be, invoked/ assumed.

Secondly, the CJP may invoke/assume the said jurisdiction in his discretion and shall do so if so requested or recommended by a bench of the court.

Thirdly, it said, "No bench may take any step or make any order (whether in any pending proceedings or otherwise) as would or could constitute exercise of the suo motu jurisdiction (such as, but not limited to, the issuance of any notice, making any enquiry or summoning any person or authority or any report) unless and until the Chief Justice has invoked/assumed the said jurisdiction."

The order also said that all matters already pending in respect of, or involving, the suo motu jurisdiction of the court shall continue to be heard and disposed of by such benches as are constituted from time to time by the chief justice. The larger bench also held that August 29 order stands recalled.

"SMC No4 of 2021 and all filings therein shall stand disposed of. The substantive claims made by the Press Association of Supreme Court and others in the application presented in court on August 20, 2021 shall be placed before the Chief Justice of Pakistan for consideration," the order says.

It is learnt that soon after the announcement of short order, SC Registrar Office has placed the journalists’ application before the acting CJP for order.

Read Justice Isa defends suo motu action

Legal opinion

Sindh High Court Bar Association President Salahuddin Ahmed lamented that Article 184 (3) - which is relied upon for invocation of the suo motu jurisdiction - speaks of the Supreme Court’s power and not just the CJP alone.

"A decision that regulated and controlled suo motu for all benches (including the CJP’s) would’ve been welcomed. But this decision merely snatches suo motu power away from SC judges to vest it solely in the CJP.

"What is needed today is to decentralise all of the CJP’s discretionary powers and to regulate and structure them. Instead, this order (passed by a bench comprising three future CJPs) only concentrates power in the office of the CJP."

The SHCBA president said that it would have been appropriate if the request of counsels had been heeded to and this important matter with far reaching consequences was heard by a full court with due deliberation rather than in the hurried manner it was decided in.

A senior lawyer believes that the order is violative of Article 184(3), which gives authority to the Supreme Court and not the chief justice to decide if question of public importance with reference to fundamental right exists.

"Hence, to say the CJP is the sole authority by and through whom the said jurisdiction is to be assumed”, or who “may invoke/assume the said jurisdiction in his discretion”, is violative of clear provisions of Article 184(3).

Secondly, he said that subordinating a bench’s power to that of the CJP is a negation of both the Constitution and Article 191 of the Constitution, because there all substantive power vests in the Supreme Court, and not with the CJP.

"This being a matter of procedure, can only be determined by rules, and not by a judicial order."

The lawyer also made it clear that rules are to be made by the Supreme Court full court, which comprises 17 judges, which is eminently in consonance with Article 176:

The lawyer contended that five judges cannot usurp this function while holding court on judicial side.

Thirdly, although as per Article 176, the Supreme Court is defined as CJ and all judges. The Supreme Court judgment says even a bench comprising two members is Supreme Court but the CJP alone is not a Supreme Court if he is to exercise any power even in terms of procedures. The CJP is to be authorised by rules, and not on his own. Such is the demand of transparency and the purpose of Article 191.

The lawyer said that Supreme Court rules provide for filing application invoking Article 184(3) in Order XXV Rules 6-11: even here power to invoke is by filing application with registrar, and no requirement of it to be placed before the CJP for clearance rather the bench is to hear it. Only thing CJP may be authorised to do is to constitute a bench for it in terms of Order XI but he has no discretion to hold back such an application.

Lastly, the senior lawyer says that there appears to be no specific rules to regulate procedure for invoking powers under Article 184(3) by any bench or judge. If there is a lacuna in rules, it can be filled in only by rules and not by a judicial order.

The lawyer said that a division bench may have not been spot on as per prevailing practice (though some precedents may be similar) but then the five-member bench has in any case acted in breach of its jurisdiction in any case saying more than was required.

Former additional attorney general Waqar Rana says that the SC short order is in consonance of established practice wherein the CJP has the sole authority of invoking jurisdiction. He said that public interest jurisdiction under Article 184 (3) should be exercised only on constitutional petitions properly filed in the SC office.